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01/12/2022

Eric Claeys on Dobbs and Precedent
Michael Ramsey

Eric Claeys (George Mason - Scalia) is guest-blogging at Volokh Conspiracy about his article Dobbs and the Holdings of Roe and Casey (Georgetown Journal of Law & Public Policy, Vol. 20, No. 1, 2022, forthcoming).  Here are his initial posts:

Dobbs and the Holdings of Roe and Casey: Roe and Casey—reaffirming, overruling … and rewriting

Dobbs and the Holdings of Roe and Casey: Roe, its judgment, and its reasons for decision

And here is the abstract of the article from SSRN:

The U.S. Supreme Court is currently considering the case Dobbs v. Jackson Women’s Health Organization. In Dobbs, the State of Mississippi has asked the Court to overrule Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). At oral argument, many of the Justices seemed to agree that Dobbs fairly presents the question whether Roe and Casey should be reaffirmed or overruled. At argument, however, Chief Justice John Roberts explored an alternative theory. In this exploratory theory, Roe and Casey entitle women only to a fair or meaningful opportunity to obtain abortions during pregnancy. Neither Roe nor Casey entitles women to obtain abortions, the theory suggests, up to the time when their fetuses are likely to be viable after birth.

This Article studies that exploratory theory with the two most relevant sets of legal doctrines. Because the theory raises questions about what Roe, Casey, and other previous abortion cases held, the Article summarizes general legal principles about precedents and judicial authority. Courts rely on these principles when they identify the holdings, reasons for decision, and obiter dicta from earlier decisions. Because Roe, Casey, and the other relevant decisions all considered overbreadth challenges to state abortion restrictions, the Article also summarizes the legal rules federal courts follow when they consider facial overbreadth challenges. The Article applies those two sets of doctrines to Roe, Casey, and 11 other subsequent cases in which the Court declared unconstitutional state pre-viability restrictions on abortion. In all of those cases, necessary to a judgment was this proposition of law: A state restriction on abortion violates the Fourteenth Amendment Due Process Clause if it restricts a substantial number of pre-viability abortions without justification. Neither Roe, nor Casey, nor any of the other 11 post-Roe and -Casey decisions invalidating pre-viability abortion restrictions can be interpreted as narrowly as they would need to be for the theory explored at oral argument in Dobbs to be convincing or faithful to the Court’s case law.

This Article helps make clear the choices presented in Dobbs. Justices may reaffirm Roe and Casey, and they may overrule those cases. Unless they depart drastically from standard legal rules about judgments and overbreadth, however, they cannot avoid that choice.

Though not directly concerned with originalism, the article and the situation in Dobbs pose important questions about the way originalism interacts with precedent.