Dobbs v. Jackson: Things PEople Are GEtting Wrong

​I've been paying attention to what I am seeing about the Dobbs case on social media, but I've had some time today to do some reading of the opinions and figure out which things people are saying are actually true. I'm seeing some real ignorance about how the Supreme Court works and about the legal issues in the Dobbs case. We live in a time where there is a grand tradition of social media activists who don't know very much about the issues they are commenting on but still feel like they need to further their own and everyone else's ignorance by chiming in on things they don't understand, and you end up with lots of hot takes that don't reflect reality. There is a good deal of misrepresentation of what the decision does and what some of the concurring and dissenting opinions actually say. Here are a few things I think need to be recognized.

1. Justice Alito, in the majority opinion, distinguishes between the abortion issue and other cases of privacy rights that served as a basis for the original Roe decision and the Casey case that partially overturned Roe while partially upholding it. Those other privacy rights, says Alito, do not involve one important thing that sets this issue apart. That one important thing is called "potential life" by Roe and Casey and actual unborn life (the more scientifically honest term) by the law at issue in Dobbs. You don't have that issue with any of the other cases that served as a basis for Roe's use of substantive due process. I also note that Justice Thomas signed on to this decision in full, which means he also recognizes that. The justices are often willing to say when they sign on to all of a decision except for one small part. He didn't say he disagreed with any of the decision. In fact, he said he agreed with all of it. He isn't denying privacy rights in other cases. But more on that in the next point.

2. Justice Thomas, in his concurrence, points out that those other cases rely on substantive due process. He indicates, as he has been doing since he first got onto the Supreme Court, that he is willing to consider overturning the entire substantive due process framework, because it is completely at odds with what due process in the 14th Amendment actually was about. To present that as threatening to overturn cases truly misunderstands how the court works. He isn't proposing legislation. He's simply affirming a principle that he has argued for his entire career, that substantive due process is a fictional notion not grounded in the Constitution and should be revisited. This is not actually even news. It's his longstanding view.

3. Also, it is worth pointing out what Justice Thomas does not in fact say. He does not say that he would overturn those cases in their result. He explicitly denies that, in fact. He says that the substantive due process ground in such cases needs to be reconsidered, because there is no constitutional notion of substantive due process. Rather, the privileges and immunities clause is what needs further investigation to see if that clause can ground such rights. And he does not forecast an opinion about whether it does. He says it needs investigation. He has signaled that he is open to seeing lots of rights assumed in that clause that are not explicit in the Constitution. What you would have to look to is where the framers of the 14th Amendment got such language and what rights they thought the notion involved. He has argued in some dissents that there are some such rights. He has long thought that the court should be considering that question, and they consistently ignore him. But some of the younger justices have shown more interest in that. Perhaps now is the time they will follow his lead in that. In any case, he is simply reiterating his view here that they ought to be turning to that clause in future cases and not allowing cases that were wrongly decided on the basis of substantive due process to have any place as a precedent for future decisions. To see this as a call for the Supreme Court to declare contraception illegal or to decide out of the blue to roll back the current status quo on same-sex marriage is just nonsense. He is saying no such thing. The people who are saying that do not understand his long-time view on this or the particular opinion he wrote for this case.

4. Also on the reasoning of Justice Thomas' concurrence: I have seen people claim that Thomas, to be consistent, should have included the Loving v. Virginia decision, suggesting that it also relies on some of the stuff that Roe later relied on, and if you question the precursors of Roe-like rights you also have to overturn that decision. But of course Thomas is in an interracial marriage, so they are claiming that pure self-interest leads him not to include that. The most obvious problem with this take, other than its extreme lack of charity, is that Loving v. Virginia does not solely or even mainly rely on substantive due process. It relies mainly on equal protection, which is a different clause in the 14th Amendment. Bans on interracial marriage violate the equal protection clause, and they would do so regardless of whether substantive due process view continues to operate or whether we return to a more historical view of what due process is. That is why he does not mention it.

5. I also think a couple points in the concurrence by Justice Kavanaugh are worth noting. He says that a constitutional right exists to disallow bans of abortion without exceptions for saving the life of the mother. He cites Justice Rehnquist's dissent to Roe for evidence that conservatives on the court have always had such a view. Presuming that at least Chief Justice Roberts agrees with him (and I suspect others do too), there are at least five votes, then, probably more, to overturn any ban on abortion that does not have an exception in the case of saving the mother's life. It's in fact likely that all nine justices accept a right to self-defense as the ground for that. That right is clearly in the second amendment, according to the Heller decision that I'm quite sure at least six of the justices on this court agree with.

6. Kavanaugh also says that a right to travel in the Constitution bans any laws against banning travel to another state to have an abortion that would be illegal in one's own state. Assuming Chief Justice Roberts agrees, as is almost certain, that would pretty easily be five justices in support of such a view, which means no such law would survive constitutional review under this court.

7. I've seen a lot of reiteration and endorsement of Senator Susan Collins' claims that several justices lied to her in private meetings. Of course, we can't know what anyone actually said in a private meeting, but she has claimed that they reassured her that they would vote to uphold Roe if it ever got challenged. I tend to doubt that that's what they actually said, and when she has been more precise she has said something very different. She has said that they affirmed that they saw Roe as settled law, which is of course not a statement that they would always vote to uphold it.
To a legal scholar, saying that something is settled law is a contrast with being not genuinely in effect. Something that is not settled law is something that is not clearly in effect, and maybe you don't even need to follow it. Or it's not clear whether you do. Settled law does not mean it can't be overturned. It means it's the actual law in place at the moment. I would affirm that Roe was settled law until Casey, and then the parts of Roe that Casey upheld were settled law until they were overturned. But that doesn't mean its being settled law means it couldn't be overturned.

And one reason we should know that, even apart from what I've just said, is that every single one of these justices consistently stated that they would not forecast how they would vote in particular cases. And that means that they could not have meant that saying something is settled law would mean they would not vote to overturn that settled law.
The notion of stare decisis means strong consideration is given to precedents of the court, but it never means a decision can't be overturned. Different justices have different views on how strong that principle is and what it would take to overturn a particular precedent, but none of them take stare decisis as absolute. The Lawrence v. Texas decision that declared a right to sex acts between same-sex couples overturned a settled precedent in Bowers v. Hardwick. That was settled law, and stare decisis gave strong reasons not to overturn it without strong enough arguments to overcome those reasons. But the court decided there were such strong reasons, and it overturned the decision. That doesn't mean they didn't believe in stare decisis.
Any senator who doesn't realize this does not understand the principle. So assurances that they support stare decisis are, like assurances that they think Roe to be settled law, not really very clear evidence one way or the other of how they would vote in a particular case. And they all said so explicitly. They said it over and over again, because Democratic senators kept asking them about it, despite having gotten all the answers they were going to get.

So any conclusions she drew that conflict with their explicit and repeated claims were just wishful thinking on Collins' part. What she has now done is to turn around and call them liars because of her wishful thinking. And Kavanaugh actually spends a bit of time explaining the high bar needed for stare decisis and why he thinks that bar was met. He has in his opinion answered the question in very explicit terms and given detailed reasoning why he could affirm stare decisis and say that a high bar must be met to overturn Roe, all the while being willing to consider and ultimately be convinced by arguments to vote to overturn it. His opinion is publicly available for those who want to see that reasoning. In any case, the fact that he does give such reasoning shows that the claim that he lied is simply false. Anyone is free to disagree with his opinion, but don't go claiming that he has no such reasons. Any claim that he lied is in fact refuted by his actual opinion in this case.
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8. The opinion by Chief Justice Roberts interestingly focuses mostly on whether the case needed to be decided so broadly. He identifies a narrower issue the court could have decided and simply left it at that. But it's worth noting that what he says about that narrower issue would substantially have eroded what Roe and Casey have allowed. Roe and Casey both considered viability the place at which states could sometimes regulate abortion, but it had an absolute prohibition on regulating abortion before that point. His opinion would have erased that point as the point that regulation can begin, but it would have not established any point after conception to replace it. It would have a replaced a point of development that is constantly moving as science advances. The viability point is thus not constant, since viability has moved earlier in the time since Roe.
But viability is relatively precise at any given time compared with what Roberts would have left us with. His incredibly vague non-answer to when states could enforce abortion restrictions is the sort of thing that is generally considered unconstitutional in Supreme Court decisions. His attempt to find a narrower spot would leave great unclarity and many continued court cases to establish what states could actually do. He seems very resistant to rolling it back to conception but very adamant that it couldn't remain at viability.

That seems weird to anyone who recognizes that the best pro-life arguments rely on the difficulty in finding any point of development to draw as a line between conception and birth for when moral status begins. There scientifically can't be any such thing. Unless you go with the view that moral status and its consequent right to life develops gradually and thus is also vague, which can then serve as a vague ground of when rights begin, the view seems incoherent. But if you look at his actual reasoning, you will see that he's actually dodging that question. He's not grounding his moving back from viability in any view about when moral status begins. (I assume he thinks it does start at conception, because he seems personally pro-life, but that's not where he goes for this question. It's quite obvious that viability can't be when moral status begins anyway, unless you want to build in a bunch of ableist assumptions about moral status. What you are capable of doing cannot be the ground of what moral status you have if people with severe disabilities have moral status. But that's a side note. That issue isn't raised in his opinion.)

Roberts doesn't ground it in moral status. He grounds it in the ability for someone to discover being pregnant and to have time to decide whether to have an abortion. His view is thus not a pro-life view at all but a pro-choice view, at least in terms of deciding when the law can ban abortions. He wants to allow some time for that, and clearly the three months of the law being considered in this case is enough time for someone in a normal situation to discover being pregnant and make that decision. So he's fine with three months, but he thinks viability is late enough that it doesn't need to be the line. Three months is enough time to discover that you are pregnant and decide to have an abortion, so why does it have to be viability? That would be a very serious revision to Roe if his view had won out. But it would be a pretty different situation than the one that did win out. I don't think a lot of the commentary I'm seeing recognizes how different his view would have been than simply upholding Roe would have been. Simply upholding Roe is not what he would have done, despite the fact that many have presented his narrower view as doing so.