Oh What Tangled Webs We Weave—Unpacking (and Unpicking) the Majority Opinion in Dobbs, State Health Officer of the Mississippi Department of Health et al. v. Jackson Women's Health Organization et al.

Strictu sensu, the question before the Supreme Court in Dobbs was the constitutionality of various provisions of the Mississippi Gestational Age Act, (now found in Title 41 Chapter 41 of the Mississippi Code; hereafter cited as § 41-41-191).

Mississippi Code § 41-41-191 (2018) - Gestational Age Act; legislative findings and purpose; definitions; abortion limited to fifteen weeks’ gestation; exceptions; requisite report; reporting forms; professional sanctions; civil penalties; additional enforcement; construction; severability; right to intervene if constitutionality challenged. For a brief review of the Act's history see Adel Hussein, What to Know About the Mississippi Abortion Law Challenging Roe v. Wade, N.Y. Times 6 May 2022.

Mississippi's State constitution

Mississippi_Constitution.pdf (ms.gov).

The text of the bill was essentially a borrowing of a draft measure promoted by the ‘Alliance Defending Freedom’ an evangelical Christian pressure group which has been hawking its (inter alia) anti-abortion legal wares around several southern States in recent years.

See Amy Littlefield, The Christian Legal Army Behind the Ban on Abortion in Mississippi, The Nation, 30 Nov. 2021.

The Act's main substantive provision is s.4(a):

Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not perform, induce, or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient's chart….

The Act (s.3(f)) defines ‘gestational age’ as day one of the pregnant person's last period. So a 15 week ‘gestational age’ can arise at just 11 weeks after conception for a woman or child who has a regular monthly menstrual cycle. People with irregular cycles might hit the 15 week point even earlier in the pregnancy.

The Act does not per se criminalize post-15 week abortions, either on the part of the pregnant woman nor the medical professional performing the procedure. Indeed, s.4(d) expressly forbids the patient from being identified. The Act does not explain how it is to interact with § 97-3-3 of the Mississippi Code, which purports to make performing an abortion procedure (other than to save the life of the mother or where the pregnancy is the result of rape) a crime punishable with up to 10 years imprisonment.

Miss. Code § 97-3-3 (2018).

The 2018 Act added to an already expansive web of statutory regulation of abortion provision in Mississippi.

See, e.g, 2017 Miss. Code, Title 41, Chapter 41 (setting a 20 week limit on most abortion procures).

Then Governor Bryant had anticipated an immediate legal challenge to the Act's constitutionality: “We are saving more of the unborn than any state in America, and what better thing we could do,” Bryant said as he signed the bill. “We’ll probably be sued here in about a half hour, and that’ll be fine with me. It is worth fighting over”.

Jenny Gathright, Mississippi Governor Signs Nation's Toughest Abortion Ban Into Law The Two-Way: NPR, (Mar. 19, 2018) https://www.npr.org/sections/thetwo-way/2018/03/19/595045249/mississippi-governor-signs-nations-toughest-abortion-ban-into-law

It is impossible to disagree with Alito's assertion that the Constitution's text “makes no mention of abortion”.

Id.

Alito is a little (if not much) less scathing in his treatment of Planned Parenthood of Southeastern Pennsylvania v. Casey,

505 U.S. 833 (1992)

The formula is generally credited as having first appeared in the Court's 1937 judgment in Palko v. Connecticut

302 U.S. 319 (1937).

In Dobbs, Alito rooted the current understanding of the principle in three recent authorities: Timbs v. Indiana;

Timbs v. Indiana, 586 U.S. _ (2019); slip opinion at 17–1091.

Unlike Glucksberg (and Roe), Timbs is actually an incorporation case (of the Eighth) rather than a freestanding Fourteenth ‘liberty’ case. Alito's reasoning for its deployment in Dobbs is that the test for accepting that an entitlement with no express textual basis anywhere in the Constitution is a Fourteenth Amendment liberty must be at least as rigorous as the one used to decide if a provision of the Bill of Rights can be incorporated against the States through the Fourteenth Amendment liberty. The Timbs test was briefly formulated: did the claimed entitlement have “deep roots in our history and traditions”.

Timbs, slip opinion, 2.

The Dobbs majority argue in what are overall unassailable terms that a similar conclusion in respect of abortion entitlements is unsustainable. The least convincing element of this historical analysis is its taking issue with the accuracy of many of the historical assertions made by the Roe majority, especially Roe's majority's assertion that abortion was not recognized as a crime in pre-revolution common law. Alito invokes various seventeenth and eighteenth century English treatises to rebut this conclusion. The critique

The passage is at Dobbs, Majority, 16–23.

The weight of Alito's historical argument undoubtedly increases as he makes his way towards the near modern era, noting that: “In this country during the 19^th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy.”

Dobbs, Majority, 23.

He then concluded – again quite credibly that:

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

Respondents and their amici have no persuasive answer to this historical evidence.

Id at 25.

However in what might be regarded as something of a sleight of hand (since the matter was not raised in Timbs), Alito also held that in addition to being firmly rooted in longstanding political practice, an ordered liberty entitlement should also be rooted in a steady and chronologically extensive stream of pertinent judicial authority. Having set this test, Alito then reasoned that the line of judicial authority which the Roe majority had invoked to sustain its conclusion that the Constitution implicitly contained privacy entitlements which could be stretched to include limits on a State's capacity to prohibit abortion. Those cases—clustered around an invocation from Palko that “only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty”—included, inter alia, Meyer v. Nebraska;

262 U.S. 390 (1923); (recognizing/creating a liberty right preventing States outlawing the teaching of German to children).

In dismissing these cases as irrelevant to the abortion issue,

Skinner and Loving are perhaps better seen as equal protection cases in any event, and so—subject to the caveat raised in the discussion of Brown below—of little direct relevance to liberty issues.

This notion of the ‘uniqueness’ of abortion as a moral issue is returned to below, in the context of considering whether overruling Roe has implications for other recent Fourteenth Amendment liberty judgments. Here we might simply note that this reasoning takes a perhaps rather simplistic view of the idea of precedent and that Alito casts no doubt on the ‘correctness’ per se of any of those previous judgments: “They do not support the right to obtain an abortion, and by the same token our conclusion that the Constitution does not confer such a right does not undermine them in any way”.

Id.

This element of the Dobbs’ majority's critique of Roe—that Roe has no credible source either in historical practice or in judicial authority—is summed up by Alito's quotation of Byron White's dissent in Roe, where White categorized the majority holding as an exercise of “raw judicial power”.

410 U.S.113, 222 (1973).

Reduced to essentials, the majority opinion seems to be telling us that a claimed ‘right’ will fall within the Fourteenth's protection of ‘ordered liberty’ if it is ‘recognized’ by a substantial super-majority of States for an extensive period of time and if it is supported by a relevant

By which Alito seems to mean a series of cases upholding a similar entitlement to the one being claimed in the instant case.

‘Recognition’ of a right in this sense must presumably encompass both (positively) protection of a value in State law and (negatively) an absence of State law restriction on that value. It is for example most unlikely that a survey of State law in the 1920s would have shown that many States had for many years expressly identified a parent's right in any positive sense to have her child taught German or any other foreign language. One might very well have found a widespread or near universal absence of prohibition of such an activity. But the Court in Meyer v. Nebraska

262 U.S. 390, 399 (1923).

Two years later, in Pierce v. Society of Sisters,

268 U.S. 510 (1925).

Both judgments were also notably lacking in precedential pedigree. If one examines Meyer v. Nebraska one finds it wholly devoid of any supportive judicial authority. In Pierce, the only authority invoked in support of the Court's substantive liberty conclusion is Meyer.

The other authorities invoked go to questions of standing and ripeness.

Skinner and Griswold have similar characteristics. None of these cases actually pass muster under Alito's Dobbs’ methodology. They could all credibly be characterized as exercises in ‘raw judicial power’. The inference then arising is that Alito's methodology test is just a legal fig leaf, covering—and not very well—the substantive moral preferences of a bare majority of the Court. We return to this issue below. For the moment we might focus attention on a second presumed inadequacy of Roe.

There is obvious weight too, at least at first glance, in Alito's characterization of the Roe majority's division of pregnancy into three trimesters, during which States were subject to decreasingly severe restraints on their regulatory power, as looking much more like an exercise in legislative than judicial lawmaking.

Setting students the challenge of drafting ‘a Roe statute’ can make for an instructive class. For a brief overview of the Roe provisos see Ian Loveland, Affirming Roe v. Wade? Planned Parenthood v. Casey, Public Law 14, 16 (1993).

Alito is using the ‘legislation’ label here in a pejoratively evaluative sense rather than simply as a descriptor. The pejorative accusation is in essence that Roe foreclosed all scope for State legislative initiatives in respect of abortion regulation. But that is manifestly untrue. States began almost immediately after Roe to enact legislation which explored and tested in all sort of ways the room for political maneuver that the judgment left them.

See, e.g., the many and varied restrictions (often considered compatible with Roe) at issue in Bellotti v. Baird, 443 U.S. 622 (1979): Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976): Akron v. Akron Centre for Reproductive Health, 462 U.S. 416 (1983): Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

Alito, J., seems to stand on more solid ground in asserting that Roe had not been ‘good law’—even in a narrow mechanistic sense—since the Court's 1992 judgment in Planned Parenthood v. Casey.

505 U.S. 833 (1992).

Insofar as one can extract a ratio from the various opinions offered in Casey, it would seem to be that States cannot impose ‘an undue burden’ on women who are seeking an abortion.

For critiques of the judgment see, interalia, Michael Moses, Casey and Its Impact on Abortion Regulation, 31 Fordham Urban L.J. 805 (2004): Neil Devins, How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars, 118 Yale L.J. 1318 (2009): Loveland, supra note 58.

This is in part because of its evident methodological failings. In the twenty years between Roe and Casey, all States recognized a ‘right’ to abortion in the Roe sense. But this recognition was of course the result of national judicial dicta, not State political choice. Such (short-lived) roots as abortion then had in the national legal landscape could not properly be taken into account for the purposes of identifying a Fourteenth Amendment liberty entitlement. For the Dobbs majority, Casey is like Roe also to be castigated as being an exercise in legislative rather than judicial lawmaking. But this is not because the Casey test was – as was Roe's – too complicated in its content, but because it is too simplistic. The notion of an ‘undue burden’ is so vague as to invite constant questioning by State legislatures. But once again, the idea that an ongoing conversation between the Supreme Court and State legislatures might have constitutional merit is not something that Alito is willing to acknowledge.

Alito takes some pains in Dobbs to place that Roe in the company of other supposedly indefensible judgments which have subsequently been overruled, and overruled not because of the passage of time and changing circumstance, but because they were manifestly wrong even when they were decided. The two most prominent examples – both of which, if one wishes to adopt simplistic labels – involve ‘liberal’ overrulings of ‘reactionary’ decisions - are Lochner v. New York

198 U.S. 45 (1905).

Prior to 1905 few if any States other than New York had imposed maximum working hours on the occupation of a baker, whether as a matter of criminal or civil law. To work as a baker for such hours at such wages as one (or —in economic reality—one's employer) wished would have been common (perhaps universal) practice throughout the United States from 1787 onwards, and was thus—notwithstanding there being no mention of the individual's right to work as a baker in the text of the constitution—an element of ‘ordered liberty’. Nor would one be able to find any significant line of judicial authority controverting that conclusion. One might be forgiven for wondering if the Dobbs majority would in fact have lined up quite happily with their Lochner predecessors.

Alito's invocation of Brown v. Board of Education

347 U.S. 4883(1954).

There is manifestly no basis in Brown to support the contention that Plessy was ‘wrong’, still less egregiously so, when it was decided in 1896. Nor, strictu sensu, did Brown overrule Plessy. Brown simply held the separate but equal doctrine inapplicable to public schooling, not to segregated transport facilities. Moreover it did so—following Marshall rather than Taney's methodology—because the Fourteenth Amendment then (in 1954) was situated in a completely different political and cultural context to the one which prevailed in 1896

In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Id, 492–493.

Neither did Brown suggest that the meaning of equal protection of the laws in the Fourteenth was to be found in the accumulated practice of many States over many years. Had the Court conducted such a search, it would have found that a great many States (and the District of Columbia)

As to which see Brown's companion case of Bolling v. Sharp, 347 U.S. 497 (1954). Bolling, which related to school segregation in Washington D.C., was decided on a liberty basis, there being no equal protection proviso in the Fifth. On the implications of Dobbs for Bolling see Cass Sunstein, The Enigma of Bolling v Sharp, Ius & Iustitium (Aug 17, 2022) https://iusetiustitium.com/the-enigma-of-bolling-v-sharpe/.

Nor could Brown be said to rest on any significant line of pertinent judicial authority. None is cited in the judgment: because there was none to cite. To the contrary, the Court had on several occasions shortly before Brown expressly applied the separate but equal doctrine in the context of State education provision.

See, eg., Gong Lum v. Rice ,275 U.S. 278 (1927): Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938): Sipuel v. Board of Regents, 332 U.S. 631 (1948): Sweatt v. Painter, 339 U.S. 629 (1950).

Brown was decided in essence on the basis of the Court's perception, rooted in a modest body of social science ‘evidence’, that school segregation imposed a sense of inferiority on black students, and that such inferiority should be considered inconsistent with the equal protection clause. There is one might think no better example of “raw judicial power” than Warren, C.J.,'s judgment in Brown. Yet Brown, according to the Dobbs majority, was ‘right’; and presumably remains so. It is certainly easy to leap to the accusation that these conclusions are not reconcilable. Methodologically, Brown is as far removed from Alito's Dobbs template as is Roe.

A recurrent theme in press coverage of Dobbs was that it placed substantial question marks over the continued vitality of other modern and near-modern era Court judgments addressing contentious social policy issues. The most obvious candidate is Obergefell v. Hodges,

576 U.S. 644 (2015). For comment in this journal see Ian Loveland, Liberty, Equality and the Right to Marry under the Fourteenth Amendment, Br. J. Am. Leg. Studies 6(2) (2017) 241.

Alito took several opportunities in Dobbs pre-emptively to refute such assertions, variously at pages 5, 32, 38, 47, 49, 66 and 71. This is where an aspect of the judgment mentioned briefly above perhaps has more traction. According to Alito, abortion is a ‘unique’ issue because it necessarily ‘destroys potential life’. It thus raised moral issues of much greater profundity than were at stake in all these other cases and so there is no basis to think that Dobbs affects their continuing vitality.

There is an obvious and profound disconnect in Alito's judgment on this point. For the majority, Roe was ‘wrong’—and ‘egregiously’ so—(as presumably also was Casey) because of serious flaws in the Roe majority's methodology and understanding of the Court's proper constitutional role. Those ‘errors’ are not tied at all to the substantively ‘unique’ nature (if such it is) of abortion. They may as readily be found in any judgment which identifies a ‘right’ which has no textual basis in the Constitution or which has not long been recognized and protected by many State jurisdictions.

Save for the fact that it did not—as Roe did—promulgate “a numbered set of rules much like those that might be found in a statute enacted by a legislature”, the majority judgment in Obergefell has all the methodological flaws that Alito attaches to its Roe counterpart. No State had recognized an entitlement to same sex marriage prior to 2000. When Obergefell was decided a mere handful of States did so. There was at that time minimal pertinent judicial authority to support such an entitlement. There is no credible basis, if deploying the Dobbs methodology, to find that a prohibition on States refusing to recognize same sex marriage is a component of ordered liberty.

Alito was a dissentient in Obergefell, on a methodological basis which precisely foreshadows his arguments in Dobbs:

Obergefell v Hodges, 576 U.S. 644, (slip opinion, Alito 2) (2015).

Alito does not mention in Dobbs that he was a dissentient in Obergefell. His dissent there certainly conveys the impression that he considered the majority decision to be—how might one best put it—‘egregiously wrong’. If such it was, that decision must surely be overruled if Dobbs correctly states the nature of the Court's lawmaking role. It seems at best unlikely that Alito has now decided his own dissent in Obergefell was itself ‘egregiously wrong’, and he should therefore overrule his own opinion. His position on the point in Dobbs is certainly not candid. The larger question is whether that position is honest.

Justice Thomas was another of the four dissenters in Obergefell, subscribing wholeheartedly to Alito's reasoning. Thomas's concurrence in Dobbs certainly has the candor and transparency which Alito seems to lack. For Thomas, Obergefell was “demonstrably erroneous”

Dobbs, Thomas 3.

Griswold would likely survive scrutiny under Alito's methodology if he is correct in his assertion that, as a matter of historical record, Connecticut's prohibition of contraception was “an extreme outlier” in terms of State law in the mid-1960s.

Dobbs, Majority, 35 fn 47.

Lawrence v. Texas

539 U.S. 558 (2003).

There is though a second dimension to the ‘abortion is unique’ element of Alito's reasoning. In part, the uniqueness is used a stick to beat the Dobbs dissentients. As Alito puts it: “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”.

Dobbs, Majority, 37.

Abortion is of course a consequence of pregnancy. Pregnancy is also ‘unique’ in terms of the burdens that are placed on the pregnant person if she is required to complete the pregnancy and give birth. The Dobbs majority seems not to recognize this. There is no mention in the majority opinion of the physiological or psychological costs a person might incur if she does not have an abortion. Indeed one might almost be tempted to suggest that:

The most striking feature of the majority opinion is the absence of any serious discussion of the legitimacy of the interest of a pregnant minor, or the child or woman impregnated by rape, or the pregnant woman who lacks mental competence, in not being required to carry the pregnancy to term.

On its face, the Mississippi statute accords almost no weight to such considerations. Its ‘medical emergency’ exception is cast in very narrow terms:

“Medical emergency” means a condition in which, on the basis of the physician's good faith clinical judgment, an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition arising from the pregnancy itself, or when the continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function.

Alito's judgment does not engage with this issue at all. Nor does the majority accord any legitimacy (nor even consideration) to more pervasive concerns about the risks of pregnancy to a pregnant person. In the 2010s, post-partum death rates in the USA during or consequent upon childbirth ran at 17 per 100,000.

See the survey in The Commonwealth Fund, Maternal Mortality and Maternity Care in the United States Compared to 10 Other Developed Countries, (Nov.18, 2020) https://www.commonwealthfund.org/publications/issue-briefs/2020/nov/maternal-mortality-maternity-care-us-compared-10-countries.

Mississippi's Act makes repeated use of the term ‘unborn human being’ to describe a fetus. The Act also asserts that the fetus is a human being from the moment of conception. This is of course a recurrent feature of pro-life discourse in the USA. To this point, the Supreme Court has consistently refused to accept that a fetus is per se the holder of legal rights in the context of abortion regulation. That refusal was bluntly stated in Roe and in Casey and in subsequent litigation. Thus far, the constitutional basis recognized by the Court for State prohibition and regulation of abortion – whatever that prohibition or regulation might be – is the ‘right’ of a State's ‘people’ to give tangible legal expression to their moral distaste for the practice through their respective State's lawmaking procedures.

For the Court to acceptance that a fetus is per se the bearer of legal rights – and is so from the moment of conception – would have profound implications not just for States which wish to have very restrictive abortion laws, but also, perhaps even more significantly, for those States which would prefer to have a very permissive legal regime. Crudely stated – if a fetus is a human being then for a person intentionally either to undergo or provide an abortion is prima facie murder.

From that perspective, arguments about ‘abortion rights’ will shift from being concerned with what a State may not constitutionally prohibit to what a State may not constitutionally allow. The crucial question which will be raised by anti-abortion activists in pro-abortion States will be in what circumstances and to what extent may a State rebut a presumption that the deliberate killing of a ‘human being’ amounts to murder? More bluntly put, the question will shift from whether States can prohibit abortion to whether they must do so. The text of the Fourteenth expressly identifies ‘life’ as a protected entitlement. That is a much less open term than ‘liberty’.

Ostensibly, the majority in Dobbs passed up the opportunity to take this step.

Kavanaugh's concurrence expressly states that the Constitution cannot be construed in a fashion which “outlaws” abortion; Dobbs, Kavanaugh 3, 5. He does not explain how one could square this assertion with acceptance of the proposition that a fetus is a person for the purposes of bringing abortion with the reach of murder.

In one sense, the moral integrity of the majority judgment in Dobbs rests on the presumption that if creating extensive—or even modest—entitlements to abortion is a matter about which a State's voters really care, then significant numbers of voters will mobilize politically to support and secure the election of political candidates who will promote and pass laws to that effect; (or if the State's law makes provision for it will pursue that result in a referendum). De jure, the United States is no longer in—and has not been for many years—an era when women or non-white or impoverished citizens were formally denied the entitlement to vote in State elections, or when attempts to exercise a formally existing voting right were met with violent or intimidatory tactics of suppression.

Subsequent events lend some force to the integrity of that presumption. The scope of abortion regulation within some States was a fiercely contested issue in the fall 2022 State elections, and there are clear indications that people's voting choices in national elections were significantly influenced by candidates’ positions on the question.

See the regularly updated post by the New York Times, Abortion on the Ballot, https://www.nytimes.com/interactive/2022/11/08/us/elections/results-abortion.html; Veronica Straqualursi, Devan Col & Pual LeBlanc, Voters Deliver Ringing Endorsement of Abortion Rights on Midterm Ballot Initiatives Across the US, CNN Nov. 9, 2022; ps://edition.cnn.com/2022/11/09/politics/abortion-rights-2022-midterms/index.html.

When Roe was decided, and for many years thereafter, the abortion controversy cut significantly across party lines. But it is now an almost perfectly partisan issue, with Democrats lining up in support of Roe and Casey and Republicans opposing them.

Sophia Cal, The Last Anti-Abortion Democrats, Axios 27 (May 27, 2022) https://www.axios.com/2022/05/27/abortion-democrats-supreme-court-midterms.

Observers who are by nature invariably and firmly predisposed to see the best rather than the worst of human nature at work in the governmental process, and who restrict their treatment of Dobbs to reading the judgment itself, might incline towards giving Alito et al the benefit of the doubt and accept that those judges are indeed principled upholders of the finest traditions of judicial constitutional lawmaking. It is however not difficult to offer a rebuttal to such naivety.

For the Dobbs majority, it is essential that Roe and Casey were egregiously wrong in order to justify the assertion that overruling them is consistent with accepted notions of stare decisis. If Roe and Casey were finely balanced in doctrinal terms then their overruling by a new Court majority would be transparently an indulgence of ‘raw judicial power’. But if a decision is considered to be—as Roe and Casey apparently were—‘egregiously wrong’, then the judges who hold that view presumably did not arrive at it, having immediately previously held a contrary or even significantly different view, as a result of arguments presented to them in court in Dobbs. If one of the highest profile of all Supreme Court opinions was in those judges’ respective opinions ‘egregiously wrong’, it must have surely been so regarded by them for a good many years. Egregious error is not a matter of nuance. It is not a realization which dawns as the product of myriad subtle, interstitial steps on a long and winding road of gradually unfolding judicial enlightenment. It is a bluntly obvious phenomenon, long and firmly held, that there can be no justification at all for the conclusion reached.

Consider then the following exchange from Alito's confirmation hearings before the Senate Judiciary Committee in January 2006:

Chairman SPECTER…... Let me come now to the statement you made in 1985, that the Constitution does not provide a basis for a woman's right to an abortion. Do you agree with that statement today, Judge Alito?

Judge ALITO. Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration. Today if the issue were to come before me … then I would approach the question with an open mind, and I would listen to the arguments that were made.

Chairman SPECTER. So you would approach it with an open mind notwithstanding your 1985 statement?

Judge ALITO. Absolutely, Senator … .

Committee on the Judiciary United States Senate, Confirmation Hearing on the Nomination of Samuel A. Alito Jr. to Be an Associate Justice of the Supreme Court of the United States, 322 (2006) Serial No. J–109–56.

There is nothing in the Dobbs majority opinion to suggest that Alito heard argument with an open mind. He sees no merit at all in any of the propositions advanced in support of retaining Roe or Casey as good authorities. Perhaps in those 15 years between his confirmation and deciding Dobbs, Alito's ‘open mind’ gave weight to all manner of arguments against his 1985 assertion, and after careful reflection found them all wanting. Perhaps. But what of Gorsuch, Kavanaugh and Coney-Barrett, the three Trump nominees now on the Court, given that Donald Trump had indicated shortly before the 2016 election that he would only nominate Justices who would overrule Roe.

Dan Mangan, Trump: I’ll Appoint Supreme Court Justices to Overturn Roe v. Wade Abortion Case, CNBC, Wed. Oct. 19, 2016 at 10:00 EDT, https://www.cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices-to-overturn-roe-v-wade-abortion-case.html.

Gorsuch's confirmation hearings were held in March 2017.

Committee on the Judiciary United States Senate, Confirmation Hearing on the Nomination of Hon. Neil M. Gorsuch to Be an Associate Justice of the Supreme Court of the United States, 322 (2017) Serial No. J–115–6; (hereafter Gorsuch, Hearing).

Kavanaugh was similarly non-committal, a position typified by the exchange quoted below:

Senator FEINSTEIN … So the question comes, and you have said today—not today, but it has been reported that you have said that Roe is now settled law. The first question I have of you is what do you mean by “settled law”? I tried to ask earlier do you believe it is correct law? Have your views on whether Roe is settled precedent or could be overturned, and has your views changed since you were in the Bush White House?

Judge KAVANAUGH. Senator, I said that it is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992…..

Committee on the Judiciary United States Senate, Confirmation Hearing on the Nomination of Hon. Brett M Kavanaugh To Be an Associate Justice of the Supreme Court of the United States, 127 (2018) Serial No. J–115–61.

Coney-Barret's position during her (2020) confirmation hearings was more palpably evasive: its lack of candor matched perhaps by a shortfall in believability:

Senator Dianne Feinstein: … (34:40) … Do you agree with Justice Scalia's view that Roe was wrongly decided?

Amy Coney Barrett: (35:05) Senator, I completely understand why you are asking the question, but again, I can’t pre-commit or say yes, I’m going in with some agenda, because I’m not. I don’t have any agenda. I have no agenda to try to overrule Casey. I have an agenda to stick to the rule of law and decide cases as they come.

The official Judiciary Committee transcript is not yet available. This exchange is taken from https://www.rev.com/blog/transcripts/amy-coney-barrett-senate-confirmation-hearing-day-2-transcript. The bracketed figures denote the time into the video recording when the comments were made.

From ‘no agenda’ to ‘egregious error’ in just two years might strike some observers as an implausibly rapid journey for an experienced lawyer, professor and judge bona fide to have made.

Some years ago, in a rather well-known collection of pamphlets on the subject of constitutional reform, Alexander Hamilton offered the following rationale for entrusting the judges of a proposed Supreme Court with a power of constitutional rather than just legislative interpretation:

…[T]there can be but few men [sic] in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge … .

James Madison, Alexander Hamilton, & John Jay, The Federalist Papers no.78 471 (Clinton Rossiter, ed. 1961).

How unfortunate it would be if the egregious—to use an in-vogue term—lack of integrity which latterly afflicted the the holder of the Presidency of the United States might also now be presumed to afflict some members of its Supreme Court.

Dobbs has manifestly not brought the abortion controversy to an end. Nor has it removed the issue from the courts. Nor is there any realistic prospect that it could ever do so. All that Dobbs has done is yank the field of legal battle many steps to the political rights.

Dred Scott provides an unhappy point of reference here. Narrowly construed, the majority holding in Dred Scott was that Congress had no power to prohibit slavery in the territories. But that conclusion opened the door to more expansive pro-slavery legal arguments; for example that slave owners in slave States had a legal right to take their slaves with them in transit through or for temporary sojourns in free States and that Congress was under an obligation to enact legislation to enforce those rights against the wishes of free States.

Dobbs does not close the door on future abortion litigation. It just points that litigation in new directions. The notion that anti-abortion activists in pro-choice States will now seek to establish that a fetus is at any point post-conception a ‘person’ for the purposes of seeking to require rather than permit States to prohibit abortion has already been canvassed. But the less draconian implications of that argument ought to be teased out.

The most obvious—and likely quantitatively most significant—next step will be that States legislate to criminalize possession, supply and use of the morning after pill and any other forms of non-surgical abortion procedure. As noted above, ‘chemical’ early-stage abortions are much the most significant element of abortions in Mississippi, and presumably in every other State as well. States have always been permitted to prohibit the in-State production of ‘dangerous’ substances, and to close their borders to such material.

See, e.g., Munn v. Illinois, 94 U.S. 113 (1877); Mugler v. Kansas, 123 U.S. 623 (1887); Powell v. Pennsylvania, 127 U.S. 678 (1888).

Any such initiatives would be complicated by the fact that morning after pills are licensed by the Federal Drug Administration (FDA), and so presumptively beyond the reach of State regulation. The FDA itself also responded promptly to Dobbs by changing its characterization of the pill to one which expressly disclaimed that it triggered abortion.

See Pam Belluk, The FDA Now Says It Plainly: Morning After Pills Are Not Abortion Pills, N.Y. Times, December 22, 2022; https://www.nytimes.com/2022/12/23/health/morning-after-pills-abortion-fda.html.

But the argument in support of such legislation is much easier to make in respect of a minor —a 13 year old raped by her father perhaps, who as a result of the rape has been placed de jure within the care of State authorities and who has no responsible adult to assist here in making an inter-State journey; or the 17 year old pregnant through consensual sex who has the individual mental competence to decide she wants to have an abortion but is the child of anti-abortion parents who are not just unwilling to assist her to do so but prepared to take positive steps to prevent it; or even indeed the child of parents who support her wish to have an abortion in another State. Parental consent laws (albeit with the possibility of a judicial by-pass) were approved by the Court in Casey. They are now widespread features of the United States abortion landscape.

Guttmacher Institute, Parental Involvement in Minors’ Abortions, (2023) https://www.guttmacher.org/state-policy/explore/parental-involvement-minors-abortions.

Dobbs does not make State laws prohibiting wholly immune from judicial scrutiny. Such laws will still be subject to rational basis review. The prospects of a successful challenge on that ground are slight at best, and even a successful challenge is likely to be of minimal quantitative significance.

A prohibition on abortion even when the life of the pregnant mother would be put at significant risk by continuing the pregnancy likely would not survive rational basis review.

There is no prospect at all of resolution being found through the process of formal constitutional amendment. Nor does the Biden administration seem to have taken seriously suggestions aired after Dobbs that the composition of the Court should be altered to create a pro-Roe or Casey majority.

See the discussion in Norman Eisen & Sasha Matsuki, Term Limits—A Way to Tackle the Supreme Court's Crisis of Legitimacy, Brookings Institute, (2022); https://www.brookings.edu/blog/fixgov/2022/09/26/term-limits-a-way-to-tackle-the-supreme-courts-crisis-of-legitimacy/.

For those of my/our students in a Constitutional Law of the USA class who are discomfited by finding things to say in favor of Taney's judgment in Dred Scott, Roe and Casey will likely have triggered similar feelings of unease. Neither judgment has clear legal roots. Neither is firmly located in longstanding and widespread political practice. Neither, it might be said, has a strong claim even to be ‘law’ at all in terms of methodology. But then, perhaps, someone might suggest that ‘we must never forget that it is a Constitution we are expounding’, and that the Court's role in expounding that Constitution is not simply to defer on such a contentious moral issue to bare majoritarian legislative processes in the States. For many pregnant people in pro-life States, Dobbs will surely prove a horrendously problematic judgment. In the more secluded world of the constitutional law classroom it offers a marvelous vehicle for exploring and evaluating the nature of the Court's constitutional role.