In less than four months, the Supreme Court will issue its ruling in Dobbs v. Jackson Women’s Health Organization and determine whether states may protect unborn children from elective abortions before viability. Because Roe v. Wade and Planned Parenthood v. Casey prevent states from imposing an undue burden on pre-viability elective abortions, the parties in Dobbs focused on whether the Constitution protects a right to elective abortion at all. The abortion providers and the Biden administration both told the Court that “there are no half-measures here”: affirm Roe and Casey or overrule them and return the issue to the states.
At oral argument, however, Chief Justice John Roberts suggested that the Court could uphold Mississippi’s 15-week abortion regulation without overruling Roe and Casey. Under the principle of stare decisis, the Court generally follows its precedents unless there is a good reason to overrule them. But that principle applies only to holdings of the Court, and Chief Justice Roberts suggested that perhaps Roe and Casey’s viability rule was not a holding. He reasoned that no regulation in those cases hinged on viability, so the viability rule could be a nonbinding statement that does not state the law — or “dicta.”
Whether the chief justice’s suggestion is correct is crucial to the Court’s ultimate ruling in Dobbs. If he’s right, the Court could avoid deciding whether the Constitution guarantees a right to elective abortion. That would require the Court to formulate some other standard, which raises its own problems for justices seeking to follow the Constitution’s text in light of our nation’s history and traditions. But if the chief justice’s suggestion is wrong, it is hard to see how the Court can avoid deciding the fundamental question: Does the Constitution guarantee a right to elective abortion?
Recent scholarship, including a new article (which I co-authored) surveying American abortion jurisprudence for the last 50 years, contradicts Chief Justice Roberts’s suggestion. He relied on the personal papers of Justice Blackmun, who wrote the opinion in Roe and privately suggested that the drafts contained some dicta. Of course, a judge’s personal papers are not part of the Court’s opinion and have no bearing on whether a statement is dicta. Regardless, Justice Blackmun never labeled the viability rule dicta and later referred to it as one of Roe’s “critical elements.” Plus, the Court’s internal deliberations focused far more on the viability rule than on any other issue in the case — including the constitutional grounding of a right to abortion — and a “holding” must include the Court’s reasoning in addition to its conclusion.
After Roe, the Court immediately applied both the viability rule and the first-trimester line then applicable to maternal-health regulations. On the day Roe was decided, the Court struck down another law based on the first-trimester line, Roe’s other “critical element.” A few years later, the Court invalidated a law because it could have been read to deviate slightly from Roe’s viability rule. At least a dozen Supreme Court decisions have struck down abortion regulations based on the viability rule. And in its 1992 Casey decision, the Court again affirmed the viability rule on principles of stare decisis, calling it Roe’s “central holding.”
Every federal abortion decision since then has applied the viability rule, with no federal judge doubting its status as the cornerstone of abortion jurisprudence in at least the last three decades. The chief justice’s own opinions have treated the viability rule as a holding. Despite many opportunities, the chief justice has never suggested that the viability rule is not binding. Given the immense legal and practical consequences that his new theory would entail, it is implausible that such a suggestion would have gone unsaid. And given that the chief justice applied stare decisis even to factual questions about applying the viability rule, it is not hard to imagine what sort of reaction a lower court opinion that wrote off viability as dicta would have received at the high court. Unsurprisingly, no court has made the attempt, or even suggested that was an option.
No doubt some believe that a narrow decision in Dobbs could avoid criticism from certain quarters. But as Chief Justice Roberts explained in another case, the Court “cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” Political controversy is no reason to distort judicial decision-making. To the contrary, it provides even more reason to follow the law. The Supreme Court does not conserve judicial capital or protect its legitimacy by a decision that preserves a prior case in name only. Relabeling the viability rule as dicta would contradict every federal judge and justice to address the issue for at least 30 years. It would imply that states and courts have operated for decades under a rule that was never law at all — wrongly forestalling dozens of democratically enacted statutes that sought to protect unborn life and maternal health. Because the Court’s abortion jurisprudence has rested for decades on Roe and Casey’s viability rule, the Court in Dobbs must confront that rule head-on.