Some Quick Thoughts on Dobbs, the Supreme Court Decision Overturning Roe v. Wade

The Supreme Court decided Dobbs v. Jackson Whole Women’s Health Organization today, overturning Roe v. Wade and Planned Parenthood v. Casey and permitting states to prohibit abortion. Abortion is now entirely illegal, sometimes with narrow exceptions, in a substantial number of states, and many restrictions that would previously have been obviously unconstitutional are now legal. In the interest of speed, I’m going to dash off a couple of quick thoughts.

My Prior Writing about the Draft Opinion

I stand by my comments about the Dobbs draft opinion. I haven’t read the final opinion in full — it’s too long to have had time to do that yet — but it appears from my brief review to be substantially the same as the leaked draft opinion, with additional responses to the concurrence in the judgment and the dissent added. My prior pieces on Dobbs are available at The Draft Opinion Overturning Roe and The Draft Opinion Overturning Roe Part 2. To recap my prior comments super-quickly: The practical consequences in terms of abortion being banned in much of the country are absolutely the most important short-term results. In terms of legal matters, while the majority describes this as getting the courts out of the abortion debate, there will still inevitably be more wrangling. It’s only a matter of time before a federal law re: abortion is passed (either legalizing it nationwide under some circumstances, if the Democratic Party can get a slightly larger Senate majority, or banning it nationwide under many circumstances, if the Republican Party recaptures both houses and the presidency). As the Dobbs dissent notes, the constitutionality of those laws would be an open and hotly contested question under the scope of the Commerce Clause. Also, there will be tons of wrangling about state constitutional abortion rights, and as some states attempt to restrict information about abortion or interstate travel to secure abortions, there will be First Amendment and right to travel litigation. And there are other, lurking issues — do fetuses have Equal Protection rights that would require the states to ban abortion? And what about other cases based on the same substantive due process reasoning, like protections of access to contraception and protections of same-sex relationships — are those now in doubt? And of course, there are major consequences to this decision politically and in terms of the Court’s institutional legitimacy and internal functioning.

The Importance of the Vote Split and Kavanaugh’s Concurrence

The structure of the majority in terms of votes is interesting and will be relevant for future abortion-related litigation. The decision of the Court was by a vote of 5–1–3. Four justices joined Justice Alito’s majority opinion. Chief Justice Roberts wrote a separate concurrence in the judgment, stating that he would have continued the death of Roe by a thousand cuts, upholding the Mississippi law (and all post-15 week bans) but not formally overturning Roe and Casey. I think that’s actually a dishonest and deceptive outcome, and that (from a pro-choice perspective) the majority opinion is actually superior. Justice Thomas joined Alito’s opinion in full, but also made it clear that he would get rid of all “substantive due process” and would overturn the contraception and same-sex rights decisions as well. His opinion has the merit of intellectual honesty and internal consistency, but of course is substantively a complete disaster. But precisely because his opinion is a concurrence setting out a more extreme position, joined by no other justices, it’s unlikely to have much importance at least in the short term.

Justice Kavanaugh’s concurring opinion, however, is more significant. Kavanaugh joined the majority opinion. However, he wrote separately to underscore the limitations of the opinion. He directly rejects the idea that there is an Equal Protection right of fetuses to have abortion banned, stating that no justice of the Supreme Court has ever accepted that proposition even though he respects people who believe it just like he respects but rejects people who believe in a constitutional protection for abortion rights. He talks repeatedly about the Constitution being neutral on abortion — neither pro-choice nor pro-life, but leaving it to the political process of the states. He also states that it’s clear to him (and not a difficult question) that prohibitions on interstate travel to seek abortions would violate the right to travel and be unconstitutional, and likewise that laws that seek to criminalize or otherwise punish abortions performed before the date of this opinion would be invalid under the Ex Post Facto clause and the Due Process clause. And he further emphasizes that contraception and same-sex rights are not implicated by this decision — a statement that’s intellectually incoherent, but of potentially great practical importance.

As a formal matter, Kavanaugh’s concurrence does not matter. It is a concurrence, not part of the majority opinion, and the majority opinion commanded a full majority of the Court (i.e. it was a majority, not a plurality). Furthermore, his statements about right to travel and the Ex Post Facto clause are “obiter dicta” — unnecessary comments by a judge that are not related to the holding and address matters not before the Court — and thus even if they were in a majority opinion, they would not be formally binding holdings. And, as a formal matter, lower courts are supposed to follow the holdings of and reasonings of majorities of the Supreme Court in previously decided cases, and not to engage in nose-counting predictions about how justices would vote in future cases.

But as a practical matter, concurrences like Kavanaugh’s matter and carry weight. He’s putting down a marker — if a right to travel case about abortion comes up before the Supreme Court, he’s saying that he will be a solid vote to strike down restrictions on interstate travel to seek an abortion (as of course would all 3 of the dissenters). And so he’s seeking to communicate to lower courts that they should similarly enforce the constitutional right to travel, lest their decisions be overturned. Lower court judges will listen to, and care about, those statements. They may not follow them — but they’re much more likely to than if there was just the majority opinion without the concurrence. That also means that sophisticated litigants who support bans on interstate travel to seek abortions won’t want those cases coming to the Supreme Court while Kavanaugh might be the swing justice. So I think his opinion is very significant and will shape future abortion jurisprudence, even though it’s formally insignificant. (For people who are interested, Barry Friedman and his co-authors have an article about this sort of concurrence — which they describe as a “pivotal concurrence” — arguing that they have substantial actual effects. Bennet, Friedman, Martin, and Smelcer, “Divide and Concur,” 103 Cornell L. Rev. 817 (2018).)

Rule by Individual Justices, not Rule of Law

Dobbs, especially following on the heals of the Second Amendment decision yesterday, is a triumph of rule by individual justices instead of rule of law. The Court majority is willing to cut through longstanding precedent and legal practice to reshape the law based on their own ideological beliefs about what’s correct (and about the correct way of interpreting the Constitution). This isn’t about deferring to the legislature as a general rule — it might be good if the Supreme Court both got out of the way of legislatures in acting on abortion and in regulating guns, and left both to the political process — but it’s about finding expansive rights where a majority of the Court wants to, and eliminating constitutional rights when a majority of the Court doesn’t want to. This is underscored by the section in Kavanaugh’s opinion where he discusses how much he respects and admires the authors of the majority opinion in Casey (Justices O’Connor, Kennedy, and Souter), essentially genuflecting at a shrine to their divine memory — why should that matter? Isn’t the opinion supposed to receive respect because (a) it’s the majority opinion of the Court and (b) because of it’s reasoning, not because of who they are? But in a structure where the individual members of the Court are what matters — where Roe and Casey fall precisely because the Republican Party has succeeded in appointing Republican justices who are anti-abortion — the fact that Kavanaugh cares about Justice Kennedy, who he clerked for, becomes of tremendous importance.

All of this points to the need for Supreme Court reform — ideally by adopting the proposal Julian Yap and I advanced for a panel-based Supreme Court, but failing that, simply expanding the size of the Court and rebalancing its partisan composition.

The Jointly-Authored Dissent

Finally, I want to note an unusual feature of the dissent. The dissent was jointly authored by Justices Breyer, Sotomayor, and Kagan. That’s unusual — you would expect a dissent authored by one justice and then joined by others. There are very few jointly authored opinions (not counting per curiam decisions, attributed to no author) in modern Supreme Court practice — the Casey plurality being one of the rare exceptions. So why was there a jointly authored dissent in this case? I think the reason is clear. Justice Breyer, as the senior dissenting justice, had the traditional authority to assign the principal dissent. And with a dissent in an enormously momentous decision that would be one of his final opinions as a Supreme Court justice, and where the politicization of the Court represented by the majority decision may have contributed to his decision to retire, he would have every reason to have wanted to write the dissent opinion himself. However, at the same time, with a decision on an issue that is core to women’s legal rights, with the other two dissenters both being women, there would be tremendous reasons to want a dissent written by a woman — although counterbalanced by a desire to make clear that this isn’t an issue that can only be understood in terms of women’s perspectives. The elegant solution is to adopt a jointly authored dissent, echoing Casey’s jointly authored plurality. He still gets to have written a dissent that will appear in case books for years to come as one of the final momentous decisions of a long and distinguished Supreme Court career. And at the same time, his women colleagues also get to write the principal dissent on an issue that is surely core to their understanding of law and equality.

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