For the first time since 1992, the overruling of Roe v. Wade and Planned Parenthood v. Casey is teed up for the Supreme Court in Dobbs v. Jackson Women’s Health Organization. In the past, the Justices have often refused to reconsider precedent because the question was not presented, briefed, or argued. Mississippi did all that robustly in Dobbs. In addition, more than 80 pro-life amicus briefs were filed in Dobbs, addressing virtually every angle of Roe and Casey. They gave the Justices ample reasons why Roe and Casey can and should be overturned.
The arguments in Dobbs on December 1st were thorough, and they focused on the foundations of Roe and Casey. The argument was, in a word, extraordinary. Chief Justice Roberts could have been silent or raised questions in a vague or neutral manner, but he was fully engaged with a number of critical comments and insights. He referenced Justice Blackmun’s papers and Blackmun’s admission that the viability line was “arbitrary.” Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett were well-prepared and engaged with critical questions and insightful points: Alito on the common law, Barrett on reliance interests, and most of them on precedent (stare decisis et quieta non movere).
Justice Kavanaugh sought to confirm that Mississippi was asking the Court to overrule Roe on a federalism basis, not a Fourteenth Amendment “personhood” basis. Justice Alito challenged the logic of the viability rule, while Chief Justice Roberts pointed out that viability was not at issue (was, i.e., “dictum”) in both Roe and Casey. Very little was discussed about the workings of Mississippi’s 15-week limit, a stark contrast from the arguments in Casey that centered around the Pennsylvania laws in question. The attorneys seemed to concede that there was no middle ground, no compromise possible; it was all or nothing – affirm Roe as is or overturn it.
And Justices Breyer, Sotomayor and Kagan seemed ill-prepared and without any new insight, theory, or rationale for Roe v. Wade. Their position seemed to be that the Court should reaffirm what it did in 1973, even though Casey clearly narrowed Roe. Furthermore, many of the post-argument predictions in major media outlets were that Roe is done for, undercutting the claim that there are any “reasonable expectations” that Roe will remain the law.
All of these factors impressed me with the hope that six Justices are seriously considering overruling Roe and Casey. There was little evidence that Justices Thomas, Alito, Gorsuch, Kavanaugh or Barrett were looking for a compromise position, and if Chief Justice Roberts tries to craft a compromise, he won’t find anyone to join him. If just five Justices—Thomas, Alito, Gorsuch, Kavanaugh, and Barrett—stick together, they may pull Chief Justice Roberts over into a 6-3 overruling, knowing that a 6-3 overruling will be more stable than a 5-4 overruling. Moreover, it’s absolutely clear, from the dialogue between Mississippi’s Solicitor General and Justice Kavanaugh, that all that Mississippi is asking, and all that the Justices will consider, is overruling Roe on a Federalism basis. So, the table is set, with a receptive bench, in a way that has not occurred since 1973.
And yet, by the nature of Supreme Court litigation and deliberations, there are no guarantees, and we’ve been surprised before in several decisions. So, state leaders and lawmakers must be prepared for either an overruling or a mere cutting-back on Roe and Casey. As in the past, the opinions by the Justices will guide what states can do effectively. How much leeway will they give to the states? Will federal courts continue to be an obstacle to effective state abortion laws? Every opinion in this case will have to be parsed very carefully.
If Dobbs Merely Cuts Back on Roe
Until Dobbs is decided, there may be no more pressing state priorities in the 2022 legislative sessions than addressing chemical abortion, establishing an effective system of state data record-keeping, collection, and analysis, and strong enforcement of laws already on the books. These laws will reduce the number of abortions, saving lives and protecting women from harm, particularly while federal action remains challenging with divided government in Washington.
At the very least, the arguments in Dobbs on December 1st indicated that a majority of Justices will likely uphold the Mississippi 15-week limit. Therefore, states in 2022 should not hesitate to pass the strongest abortion limits possible. This same reasoning applies before the Dobbs decision and in the wake of a decision that merely affirms Mississippi’s 15-week limit.
If the Court merely cuts back on Roe, there are already over 40 abortion cases in the lower courts, and so it is likely that the Court will have plenty of opportunities to address the issue in coming years. Does a state need to create the 45th test case for Roe’s overturn, or would it be more productive to focus on currently enforceable laws that can protect life and shape a culture of life in the state?
If Dobbs Overrules Roe
The overruling of Roe (and by implication its companion case, Doe v. Bolton, and Planned Parenthood v. Casey) will present the most difficult prudential challenges that pro-life leaders and lawmakers have faced since Roe v. Wade.
In my book, Politics for the Greatest Good, I write about the virtues elected officials and policymakers should follow to enact laws that best serve their constituents. Reflecting on this current moment, here are the values I encourage lawmakers to consider as they stand on the precipice of an opportunity for good governance not available in two generations:
Prudence – the essential and necessary guide. Leaders and legislators should start with a strong sense of the cardinal virtue of prudence. Prudence is practical wisdom oriented toward the moral good in politics. Prudence poses four questions for lawmakers: good goals, wise judgment as to what’s possible given the opportunities and obstacles, effectively connecting means and ends, and avoiding a permanent compromise that prevents future progress. Prudence points us to the goal of achieving the greatest good possible in light of current obstacles and opportunities.
A clear understanding of “compromise”. Prudence also requires an accurate understanding of “compromise.” Unfortunately, “compromise” is often an epithet. Compromise requires mutual concession. Compromise assumes a distribution of power between two sides who each “give up” something in order to reach a settlement. That simply doesn’t happen on abortion limits (of any kind) in the states. There are often no negotiations between advocates and opponents of abortion. Compromise doesn’t happen. Instead, votes are taken, the outcome is revealed, and the die is cast by public votes, not negotiations.
Fighting for the most that can be secured—fighting against all odds for less than the ideal—is not a compromise. Achieving less than the ideal because of overwhelming obstacles is not a compromise. It is moral and prudent to achieve a partial good in politics and public policy when the ideal is not possible due to obstacles beyond our control.
A clear understanding of “exceptions”. One of the great prudential challenges is the question of legislative exceptions in a general prohibition of abortion, what some have called the question of imperfect legislation. Exceptions or conditions are part of virtually every piece of legislation. Conditions are typically imposed by public opinion or a countervailing majority.
In 1990, John Cardinal O’Connor expressed a standard for conditions that may be the best ever published:
“It certainly seems to me … that in cases in which perfect is clearly impossible, it is morally acceptable to support a prolife bill, however reluctantly, that contains exceptions if the following conditions prevail: A. There is no other feasible bill restricting existing permissive abortion laws to a greater degree than the proposed bill; B. The proposed bill is more restrictive than existing law, that is, the bill does not weaken the current laws’ restraints on abortion; and C. The proposed bill does not negate the responsibility of future, more restrictive bills. In addition, it would have to be made clear that we do not believe that a bill which contains exceptions is ideal and that we would continue to urge future legislation which would more fully protect human life. I recognize that some in the pro-life movement may consider it politically and strategically unwise to take the course outlined above, but that is a matter of prudential judgment; it is not a matter of supporting intrinsic evil as such.”
The broad answer—whether the court overrules Roe or merely gives more leeway to the states—is basically the same: pursue the greatest good possible given the opportunities and obstacles in each state. In some states, the best time to address the “hard case” (rape and incest) exceptions is when abortion is prohibited for all other reasons.
Effective Enforcement. Hundreds of abortion laws have been passed since 1973, but many have been enjoined by federal or state courts. Effective enforcement of laws on the books will now be a key challenge. As a general matter, state limits need to be effectively enforced in as many states as possible. That’s perhaps even more true when Roe is overturned, because enforcement will no longer be ruled by injunction by federal courts and will be more fully subject to state discretion and authority. There are lessons to be gained from the pre-Roe enforcement record. One is that public support is necessary for effective law enforcement. Another is that it makes no sense—it is counterproductive to effective enforcement against providers—to penalize women for abortion.
Unity. Legislators and activists should seek to avoid a division in and dilution of pro-life forces. Sometimes division may be unavoidable, but the effort should be made regularly. Division may be the cause of defeat on close questions. When we speak in a unified voice, we are harder to ignore or push aside. It is worthwhile to attempt to bring people together, into a conversation that may last for many years. Each state is different and has different opportunities and obstacles. The answer for each state is best understood and conceived in that state. It can’t be dictated remotely.
A Long-Term Strategy
State legislators need to adopt a long-term view and persevere with a long-term strategy. Some states may be convulsed by violent opposition and deceptive media after the Dobbs decision. It will take time to understand that overruling Roe does not mean that abortion is immediately made illegal in all 50 states. And the abortion issue will be shaped—in the future as in the past—by medical and social developments.
Challenge Weak Paradigms
Legislators need to robustly challenge the notion that abortion is good for women. Legislators need to consistently and regularly make the case that abortion kills babies and hurts women. Legislators need to be better informed about the international medical data. They need to understand the short-term and long-term risks and the studies that have been conducted. Make the case, at every opportunity, with both data and stories, that abortion is bad for both.
A culture of life in America requires more than the legal protection of prenatal human beings. Protecting people from suicide by physician and having effective and affordable healthcare systems are also necessary, and they will impact the cultural support for ending legalized abortion.
What the states do after Roe will not only determine substantive protection of life in the state but also affect future debates over whether a federal constitutional amendment is needed to protect life and how it should be framed. The issue will not be settled in a few months or a few years. The crucial challenge is thinking prudentially about the right goals and the opportunities and the obstacles to making progress, whether Roe is overturned or pared back in Dobbs.
