The Chief Justice’s middle course in Dobbs

After the oral argument in Dobbs, only two outcomes seem possible. Either the Supreme Court will overrule Roe v. Wade or it will uphold the Mississippi statute prohibiting abortion after 15 weeks of pregnancy without overruling Roe.

Chief Justice Roberts seems to prefer the second outcome. The questions are: (1) does he have a theory to support it and (2) does he have a conservative Justice who will go along with it. Without the latter, he can’t get to five votes.

I think Roberts has a plausible theory for upholding Mississippi’s 15 week ban without overturning Roe. He can point to precedent in the form of the Court’s other major abortion ruling, Casey. That case did not overturn Roe’s finding of a constitutional right to abortion (it reaffirmed it), but did reset the period in which that right exists to pre-viability — i.e., up until the time when, it is believed, a fetus can survive outside the womb. This decision altered Roe, which set the period a few weeks later, at the end of the second trimester of pregnancy.

During oral argument, Roberts made the point that “viability” has little, if anything, to do with the alleged right[s] Roe protects. A woman’s “right to choose” is impaired as much by being pregnant after the fetus is viable as it is before. The hardship of pregnancy only increases the longer it lasts.

Roberts also observed, or at least implied, that the “reliance” (or expectation) interest in preserving Roe would not be significantly altered by upholding a 15 week rule. This is an important point because reliance is a key factor in determining whether to reverse a Supreme Court precedent. The more that people have come to rely on a precedent, the less willing the Court ordinarily is to overturn it.

The vast majority of abortions occur before 15 weeks (90 percent of them, according to Roberts’ sources). Thus, although there undoubtedly is some “reliance” on drawing the line where it is now, at viability, that reliance isn’t nearly as substantial as is the reliance on the “right” to obtain an abortion much earlier.

Moreover, as noted, Casey itself shortened the period during which abortions must be permitted by states. In a sense, then, the meta-holding of Casey permits a shortening of the Casey period. It does not, however, permit overturning Roe. To do that, the Court would have to fully reject Casey, as well.

To be clear, I’m not saying the Roberts middle ground is the correct way to decide Dobbs. But the Chief Justice has presented a coherent path to a middle ground.

An obvious objection is that a ruling such as the one Roberts seems to contemplate would invite states to shorten the period further — to twelve weeks, or ten, or eight. Thus, the Court would be called on to confront one abortion case after another and to draw lines that inherently are pretty arbitrary.

The prospect is unappetizing, to be sure. But to the Chief Justice, it may seem more palatable than facing the firestorm that would accompany the outright overturning of Roe.

The question becomes whether there’s another Justice who would go along with Roberts. If there is, it’s probably Justice Kavanaugh. But Kavanaugh wasn’t pulling in that direction during the oral argument.

The key to Kavanaugh’s current thinking can be found, I think, in an exchange with the government’s lawyer, Elizabeth Prelogar, near the very end of oral argument.

Kavanaugh said the Constitution is silent on the issue of abortion — it is “neutral,” neither “pro-life nor pro-choice,” on the question. Accordingly, he asked:

When you have those two interests [choice and life] at stake and both are important . . . why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?

To me, this is exactly the right question for purposes of constitutional adjudication.

Prelogar responded that a woman’s right to choose is a fundamental constitutional right and therefore one that “is not up to the states to decide whether to honor.” In essence, she responded by denying Kavanaugh’s premise that “the Constitution is silent on the issue of abortion” (or by denying that it matters whether the Constitution itself, as opposed to precedent, addresses the issue).

Prelogar argued the case very well, and I’m not sure a better answer was readily available to her. However, Kavanaugh is unlikely to be persuaded by an answer that assumes a view of the Constitution with which he says he disagrees.

It will be up to Chief Justice Roberts to provide a more persuasive answer. The fate of Roe v. Wade may turn on whether he is able to.

Responses