Dobbs: The Majority

Okay. I really should have done this earlier, I guess, but it's time to look over the majority of the Dobbs opinion. 

Meanwhile, President Biden handed down an executive order, and Biden and Harris continue to meet with pro-choice leadership.  I wish there was more coverage of such matters.  For instance, after leading with yet more coverage of the 1/6 Committee and related matters, Chris Hayes had a guest talk about the order in the last five or so minutes of his show yesterday.  

Maybe, if there was more coverage, the "Biden isn't doing anything" type responses would tone down a tad.  Melissa Murray (Strict Scrutiny Podcast, familiar face on cable shows, etc.) on Twitter noted that basically the bottom line thing that matters now is November.  I do wonder what executive orders will do.  Probably at some point we will have litigation on state power to ban use of abortion drugs and travel issues. 

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade

Okay, I know, I have to deal with Alito.  This isn't really true.  I think that is going to be a theme.  Before Roe, multiple state and federal courts limited the power of the states in this issue.  Alito cannot even toss in a comment about some "recent" move here in the courts.  He has to say that Roe suddenly out of the blue changed things.  It did not.  

Although the Court acknowledged that States had a legitimate interest in protecting “potential life,” it found that this interest could not justify any restriction on pre-viability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe’s reasoning. 

This is a lie.  It is a blatant (deep breaths) lie that "any restriction" was not allowed.  Words have meanings.  For instance, only allowing doctors to perform an abortion is a "restriction."  The word must be being used to mean "total ban," but that is not what he said.  

I left out a footnote citation, but it page cites a summary of the trimester lines.  It explained the "basis" of each.  Again, he could have said the basis was "wrong" or something.  But, the basis -- another tiresome case where a normal word is used as a sort of narrow code meaning -- was cited.  The Roe Court balanced state interests with the right to choose.  

[ETA: I want to underline this. The "trimester scheme" (as it is sometimes called)  is doctrine.  There are lots of doctrines.  They balance a range of things and channel them into applicable lines.  So, for instance, maybe you have to bring someone in front of a judge within "x" amount of time.  

Roberts posed some vague balancing test rule.  The trimester rules, like  like the Lemon Test or the three part test on how to define obscenity, allow people, including judges and law makers, to  have a more workable set of rules.  There will be some disputes, but it provides some basic guidance.]

In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish. 

As noted by Roberts, the case was granted to consider a more narrow question, and it allows them to cheat to use their "primary" argument for the Court to do something it specifically didn't grant the case to decide.  The Court -- when it suits -- repeatedly does not allow that sort of thing. It even sometimes "DIGs" a case, disposes it as improvidentially granted, when the arguments made seem to be beyond the question presented. 

The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.

A state law that forces people to serve as incubators sure sounds like a form of involuntary servitude to me.  

BTW, the opinion tosses in various people who criticized the reasoning of Roe, without noting that they repeatedly also supported a right to choose, including (John Hart Ely Jr.) upholding Roe as precedent. 

Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.

These other rights are not directly (but see, of course, the 9A etc.) by the Constitution either and many of the same rhetoric/arguments pop up [reading the dissent of Chief Justice Roberts in Obergefell v. Hodges is telling here; oh do read it], so this is a key issue.  

Still, two basic problems.  (1) Not sure why such disputed moral/religious belief is the dividing line -- if anything, the First Amendment alone suggests, it is less sensible to make an exception here of all places.  (2) The state interests -- at least so far -- aren't so serious that there is found to be a compelling state interest to block abortion from being allowed.  

We begin by considering the critical question whether the Constitution, properly understood, confers a right to obtain an abortion. Skipping over that question, the controlling opinion in Casey reaffirmed Roe’s “central holding” based solely on the doctrine of stare decisis, but as we will explain, proper application of stare decisis required an assessment of the strength of the grounds on which Roe was based.

The second section of Casey (before the stare decisis discussion) provides an extended summary and agreement with substantive due process. The section is assumed to have been written by Justice Kennedy.  The basic principles are reaffirmed in his same sex couples liberty decisions.  

The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.

Again, it is unclear how "implicit" the right at issue truly is. Still, fine enough. We soon see that their criticism is simply not cabined:

Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.

The choice of Alito to write this opinion (though as I noted before, Kavanaugh's concurrence isn't really much better) encourages this sort of tone.  At any rate, Roe v. Wade summarized a range of opinions involved here.  Casey provides more detail.  As did many other opinions, on various levels.  As did a lot of other people.  And, again, this is an open-ended criticism.  Why is Griswold acceptable on this light? 

Neither Roe nor Casey saw fit to invoke this theory

The opinion disposes of the equal protection argument -- which again is made regularly -- in a dismissive handwave.  The abortion cases regularly spoke of the importance of the right here for a "woman," including Casey saying things like "We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function."  

“deeply rooted in [our] history and tradition”

The right to choose an abortion has been recognized as part of substantive due process.  This isn't the only way you can protect the right, but it is the core of Roe and Casey.  I should be careful there because again by the time of Casey, surely, it was recognized there was an equality component. Justice Kennedy recognized the overlap in Lawrence v. Texas.  

We now have some (selective) exegesis on history, which Roe allegedly either "ignored" (it has a LONG section on it) or "misstated."  As the joint dissent notes, it is unclear -- if the majority is consistent about its recent originalism -- how useful the centuries of history summarized is.  

The point seems to be 1868.  But, let's say the history is still garbled with comments like "Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right."  

This sort of thing is refuted by others.  But, again, what is the point to debate on such terms?  As the dissent notes here and in the gun case, and heck the praying coach cases, history is Calvinball with this bunch.  

The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. 

The dissent basically conceded this was true in 1868 ("right"), but it is a matter of debating terms.  What exactly does this entail?  Was  "right to interracial marriage" deeply rooted?  The answer from conservatives would appeal to the meaning of equality in the race context.  That is, the usual originalism game of selectively being concerned with generality.  

There was some sort of "right" to control your body, family size, and so on.  The evils of slavery involved black women not having such liberty.  There also was a mixed understanding of when abortion was necessary for health, again, there being some understanding that there was a right to basic well being here.  And, then, there was the problem of arbitrarily applying the rules here, including by abortion panels at hospitals.

The regulation of abortion arose for a variety of reasons, some valid (safety), some not (concern for eugenics or monopoly of medical control).   These all factor into "history" and "tradition" as does reasons why abortion rights  began to expand.  The majority at one point denies any "illegitimate" motives at all here. This is just one-sided history.  

One may disagree with this belief (and our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests), but even Roe and Casey did not question the good faith of abortion opponents.

So, "a sincere belief that abortion kills a human being" is not the line that differentiates abortion rights, even though "destroying" such "life" is for some reason.  See above, where that underlined as a key difference with Roe. Again, we are firmly told that contraceptives or marriage is not at issue here.  And, "belief" to me sounds like a religious concept that as Casey noted must be left (well regulated to be sure) to the individual in this context.  

Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. 

As a supporter, this is not true, unless again "seriously" means "not the way I agree with."  Supporters cite basic principles of liberty and equality with deep roots.  Roe v. Wade suggested the right to privacy at issue goes back to at least a case back in 1891 or earlier.  See also, Griswold.

The basic principles have deep roots.  The specifics change over time some, especially as women and others are accepted as more full equal citizens.  This is developed by precedent, which is seen as too vague for the majority, though it is how law develops in general (see speech).  

The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life.

As Chief Justice Roberts et. al. argued about same sex marriage, the appeal of letting others draw difference lines do not stop at abortion.  Justice Thomas' concurrence aside, this argument is a bit too open-ended for all five of them.  So, we are told that the "critical moral question posed by abortion" is the difference.  

But, no matter if it was cited as a "unique" act, the precedents do not say it is SO unique that it can be banned.  Various rights have "unique" aspects.  Raising children, for instance, is involves the interests of a being no doubt about it is a child.  And, is limited to this, the opinion can cover a range of things such as certain types of "birth control" and in vitro fertilization. 

The majority is again wrong to say "potential life" is totally ignored.  The dissent notes as much, noting how the interests are balanced. The viability line is one. Ditto such things as providing waiting periods or counseling materials.  I myself think some of these things as accepted by Casey goes too far.  But, it underlines the talking past each other here. 

We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey.

You would think that this would come before an extended look at the question as if you were deciding it the first time.  

First, obviously, some major precedents were overruled.  The overruling tended to be a matter of a societal change. So, segregation no longer was seen as appropriate, or Lochner Era economic policy was no longer accepted.  As the dissent notes, it is unclear what foundational change happened here.  An illegitimate Court, particularly set up to be a conservative activist one, is why this happened.  

In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.

Roe "was [not] on a collision course with the Constitution from the day it was decide."  It fit into a wider collection of precedents that went back to at least the 1920s, if not before.  The quality of the reasoning regarding the basics was fine.  Again, Roe explained why it drew the lines it did, and at best there was some reasonable disagreement on where to do so.  

This section of the opinion again has the specious citation of people like Tribe or Tushnet who do not oppose the core of Roe v. Wade.   Casey [did not] "abandoned any reliance on a privacy right and instead grounded the abortion right" -- it just framed it as a "liberty" interest, if one with the same basic principles.  The "workability" of the fundamental right or undue burden test is as good as any number of constitutional tests.

The section also cheapens the "reliance" interests involved in basic assurance that one's reproductive liberty is protected.  The opinion has mere ipse dixit that somehow abortion alone is affected by its analysis.  If the principles cited are consistently applied, it does not.  And, abortion rights do not corrupt other areas of law. 

Finally, there the opinion was not "egregiously wrong" the day it was decided.  The reversal of a fifty year precedent warrants a lot more than is shown here, including a clear warning and full briefing specifically targeting it.  Precedents tend to develop over time, not suddenly -- because the personnel changes -- be overruled.  The action here is crude activism.  

[They then ridicule Roberts' attempt for a middle path.  I don't think his analysis is very good either, but it at least is more tied to the alleged issue at hand, and not a total YOLO job.  The proper path would have been a Citizens United reargument.]

Under our precedents, rational-basis review is the appropriate standard for such challenges.

This standard basically is a carte blanche to do anything you want.  The cases cited are economic regulation policy type cases that have no real limits.  The section has NOTHING that suggests there is some exception. Kavanaugh in passing says a life exception was granted by Rehnquist.  

But, even that, as the dissent notes, is rather vague.  Pregnancy itself causes a range of health problems. So, clearly such a rule has to be narrow in scope as not to swallow the rule.  Surely, rape is not suggested.  

There is a strand of cases that probably are not respected much by various members of the majority that are concerned with discriminatory laws (a case like Romer v. Evans), but the opinion without analysis ridiculed the idea that anti-abortion laws are of that caliber.  It is hard to see what laws would be deemed illegitimate.  

Kavanaugh assumes a law blocking travel would be struck down (unclear).  The majority doesn't say this. The only time that comes up in any fashion is ridiculing the viability line to the degree that it might be somewhat higher some places where it is more likely for a fetus to survive outside the womb with better treatment.  This leads one not to be hopeful the majority will respect some limits in extreme cases.  

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The opinion then has an appendix that lists anti-abortion law through the years without providing context and discussion of their terms and the conditions involved in their passage.  Curiously, it does not have the most recent "reform" type laws (the list goes past 1868) or state court opinions that protect abortion rights.  

It cites a D.C. law without citing United States v. Vuitch, which provides an open-ended definition of "health" that flows directly into Roe v. Wade.  This appendix is more more selective look of history.  This is an illegitimate institution. 

ETA: One other thing to toss in is that the opinion is critical of Casey's attempt to appeal to the controversy as a whole, including its attempt to settle things on some level, especially since (of course) abortion is still a major dispute.  The majority said their opinion might be controversial, but that is out of their hands; they were just judging is all. 

I was never a big fan of some aspects of that approach and (though Breyer focused on it during the oral argument) the dissent did not focus on it too much.  But, it is appropriate to carefully handle major legal questions, including those with very sensitive and controversial aspects.  They reached out here and went out of their way to be a bull in a china shop.