In the aftermath of last week’s outrageous leak of Justice Alito’s February 10 draft opinion in Dobbs, CNN reported that its sources say that Chief Justice Roberts, while purporting not to overturn Roe v. Wade, “is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy.” As I restated last week, I do not see how anything other than rank sophistry could support a conclusion that a 15-week ban is consistent with Roe, and I therefore cannot believe that the Chief is inclined to embrace it, much less that he would have any chance of inducing any of his colleagues to do so. But we shall see, I suppose.
In this First Things piece, Princeton professor Robert P. George neatly summarizes why no middle path exists between overturning Roe and invalidating the Mississippi law. Professor George draws on the more extensive essays by law professors Eric Claeys and Sherif Girgis that I have previously highlighted:
Scalia Law School Professor Eric Claeys has explained why the viability line was essential to Roe and Casey. As Claeys points out, both were “overbreadth” decisions. Such decisions invalidate a law on the ground that too many of the law’s potential applications would be unconstitutional—whether or not its application to the parties in the case at hand would be.
Thus, the Roe Court didn’t focus on how early or late in pregnancy Jane Roe had hoped to abort. Her own timing was irrelevant because the Texas law at issue was overbroad. Why? Because too many of its potential applications would block a pre-viability abortion. So Roe’s whole basis for invalidating the Texas law was the supposed unlawfulness of banning abortions pre-viability. The viability line was therefore essential to Roe’s outcome—and, for similar reasons, to those of Casey and 11 other Supreme Court cases. Thus, Dobbs could not, after all, uphold Mississippi’s pre-viability ban without contradicting Roe’s and Casey’s holdings….
[U]pholding Mississippi’s law under Casey’s rule against undue burdens before viability … wouldn’t just ignore the words “before viability”; it would transform the meaning of “undue burden.” In Casey, that phrase referred to incidental regulations of the abortion procedure—like waiting periods—that would make it too hard to abort at some stage of pregnancy, preventing abortions at that stage nearly as much as formal prohibitions would. But the law in Dobbs just is a prohibition. It doesn’t make abortions harder to obtain after 15 weeks; it makes them legally impossible. So the law cannot be upheld under Casey’s rule against “undue burdens.”
To decide otherwise would transform that phrase’s meaning from “regulation that has similar impact to a ban” to “actual ban that applies too early,” as Notre Dame Law Professor Sherif Girgis has noted. Thus, Girgis continues, “a finding of ‘no undue burden’ in Dobbs would be a play on words, employing a test that only rhymed with Casey’s.” And the new test would have “a new job, and reflect a new theory of abortion rights, that left nothing of Casey’s logic intact.” First, instead of serving to “tell us the times in a pregnancy when [functional bans] are unconstitutional,” as in Casey, the phrase would “take on the quite different function of telling us how much time a woman must have between learning she is pregnant and facing a ban.”
Second, this new test would necessitate an equally “novel constitutional rationale for the resulting abortion right.” The justification would “have to be, not [Casey and Roe’s rationale] that the woman’s interest trumps the fetus’s until the fetus is viable, but a rationale less sensitive to changing judgments of fetal worth at different stages: that one way or another, pregnant women’s interests . . . entitle them to some fair opportunity to abort.”
Claeys and Girgis establish that a Dobbs “middle ground” would be no such thing. It would have to reject every part of Casey’s and Roe’s legal tests, and no part of it could rest on either precedent. The Court can either invalidate Mississippi’s law under Casey and Roe, or consign them to the ash heap of history.