The Over/Under on the Right's Federalism Flip on Abortion

by Neil H. Buchanan

 

Having returned two days ago from spending Fall semester in the UK, I am still jet-lagged and not able to write a normal column for Dorf on Law today.  As it turns out, however, this was a good week for me to be disengaged.  After all, the big story of the week was the Supreme Court's oral argument in the anti-Roe case, and Professors Colb, Dorf, and Segall have already ably and extensively commented on that debacle.

 

Even if I had been able to fully engage this week, I suspect that I would not have had much to add to their analyses.  In this very short entry, therefore, I want to return to an abortion-related question that I posed in a column three months ago.  I wrote:

Republicans' commitment to devolved federalist power -- so-called states' rights -- has never been anything but opportunistic on any policy question.  Even within that hailstorm of hypocrisy, however, their commitment to "letting the states decide" abortion's legality has always been a crock.

...

How many nano-seconds will it take Cruz to decide that abortion is a federal issue, after Republicans are able to pass a federal prohibition that their packed courts will allow to stand? 

...

 

Cruz and others in his camp will simply do what they did when asked about the hypocrisy of ramming through Amy Coney Barrett's confirmation.  Cruz was particularly blunt, telling interviewers that people could complain all they want, but because Republicans had the votes to do what they wanted to do (and to ignore what they had said about Merrick Garland's nomination), nothing could stop them.  And so it will be when Republicans want to outlaw abortion nationwide.  I honestly would not be surprised if Cruz has already written his speech favoring central government control of women's bodies.

The oral argument included pious let-the-states-decide comments from Brett Kavanaugh.  My guess is that the majority might even include some such language in their opinion neutralizing Roe.  Even so, that will all be forgotten as soon as it is convenient for the one-party autocrats to flip.

 

I therefore want to use this post to open the comments to guesses as to the answer to the question: How long will it take before Republicans try to pass a nationwide ban on abortion?  My over/under is two days from the beginning of the next congressional term in which they are in the majority.

 

Bonus question: What fig leaf will Kavanaugh et al. use to claim that their sudden abhorrence for states' rights is not evidence of their being partisan hacks?

What's In A Name? How Proponents of Compulsory Pregnancy Have Distorted Our Thinking

 by Sherry F. Colb

For a long time, I have used the phrase pro-life to refer to people who believe that the government ought to be able to force women to remain pregnant and give birth against their will. My reason for this usage was to show respect for people who in good faith disagreed with me on a difficult and painful issue. I now believe that I made a mistake. The phrase "pro-life" is now and always has been little more than propaganda that distorts the nature of the abortion debate. 

Another bit of propaganda, more subtle than "pro-life," is "unborn child" or "the unborn." Language matters, and these two phrases together contribute to an overall picture that bears almost no relation to reality. Since the oral argument on Wednesday betrayed little of the reticence that once characterized the folks who want to force women to remain pregnant against their will, I will henceforth speak in accurate terms about the stakes in the abortion contest. If accuracy results in disrespect, then I will regard the double effect as amply justified by the need to illuminate an issue that has been shrouded in doublespeak.

The Dobbs Oral Argument: Lowlights and More Lowlights

 By Eric Segall

If you are reading this blog, you know that the most important abortion case in 30 years was argued this morning at the Supreme Court. As expected, precedent was a major issue (especially for the liberals) while the location of where the right to terminate a pregnancy comes from was a major topic for the conservatives. Below are lowlights from the argument, which was much more theater than legal or even policy discussion. At the bottom of the post, I offer a few predictions about what is to come. 

The Problems With the Chief's Middle Ground

 by Michael C. Dorf

During the just-concluded oral argument in the Mississippi abortion case, the Chief Justice seemed to be searching for a middle ground. I'll write up a brief summary of the opinion I think he'd like to write, then point to three very serious problems with it.

Chief Justice Roberts delivered the opinion of the Court: 

In Roe the Court said in what was dicta that the state may not forbid abortion before fetal viability. Casey, which also did not directly implicate viability, purported to reaffirm that line, even as it discarded the trimester scheme that had been central to Roe. Viability is not, however, central to Roe or a sensible line. A woman's interest in being free from an unwanted pregnancy exists before and after viability. So does a fetus's interest in life. We nonetheless recognize the reliance interests of society and the interest in gender equality that undergirds the abortion right. That right is a right to choose. Accordingly, in place of the arbitrary viability line, we hold that a state may forbid abortion only after a woman has had a reasonable time to decide whether to terminate a pregnancy. We need not decide when that is. Certainly a few days after conception would not be enough time, given the logistics of scheduling and the fact that many women will not know they are pregnant for weeks. However, 15 weeks is more than enough time to obtain an abortion in a typical case. If there are later-developing health grounds for terminating a pregnancy, that could be the basis for an as-applied challenge to a state law that does not allow exceptions for such circumstances. Under this standard, we reverse the appeals court.

Now to the problems with this approach. I'll put aside my view that there is no (non-religious) state interest in forbidding abortion prior to fetal sentience.

The Undue Burden Test Really Is Not Relevant In Dobbs

 by Michael C. Dorf

The oral argument in Dobbs commences in a few hours. Prof Segall and/or I will be back either later today or first thing tomorrow with some instant analysis. Meanwhile, by way of further preview, I want to respond to some scattered pushback against one of the claims I made in my blog post on Monday. There I argued (among other things) that the amicus brief of Senators Hawley, Cruz, and Lee is peculiar in that it is almost entirely directed against the undue burden test adopted by SCOTUS in Planned Parenthood v. Casey, even though the flaw that the Fifth Circuit found in Mississippi's Gestational Age Act is that by outright forbidding most abortions before 15 weeks, the law violates the prohibition on pre-viability bans, and that prohibition was not introduced by the Casey Court as part of the undue burden test; rather, it is the part of Roe v. Wade that the Casey Court reaffirmed. Thus, I said in Monday's blog post that the focus on the undue burden test was essentially a non sequitur.

To be honest, when I wrote Monday's blog post, it didn't even occur to me that anyone might plausibly think that the undue burden test was implicated by the Dobbs case. That's partly because when the Supreme Court granted certiorari, it rejected the question Mississippi tried to pose implicating undue burden. The original petition posed three questions. The Court granted on question 1 -- "Whether all pre-viability prohibitions on elective abortions are unconstitutional" -- but rejected question 2 (about undue burdens) and question 3 (about standing). Even after I noted as much, however, some of my readers insisted that the undue burden test could be relevant.

I want to be clear that I agree with these readers that it is possible that one or more Justices could write or join an opinion, concurrence, or dissent that says something about the undue burden test or even claims to resolve the case under it. What I'm saying is that doing so would not make any sense, unless those who do so frankly acknowledge that they are changing the law.

For the nearly three decades that Casey has been on the books, it has been more or less universally understood to have endorsed the following rules: (1) pre-viability, the state may not forbid abortion; (2) post-viability, the state may forbid abortion, so long as it allows life and health exceptions; (3) at any point in pregnancy, the state may impose regulations that do not amount to prohibitions, but if those regulations govern pre-viability abortions, they may not unduly burden the abortion right. (1) and (2) reaffirmed and did not change what the Casey Court called the essential holding of Roe. (3) is the undue burden test that Casey introduced. Because the Mississippi law runs afoul of (1), it implicates Roe, not Casey's undue burden test.

Teach Your Parents Well

by Neil H. Buchanan

 

Generally, I like to think that I "get" American politics.  That does not mean that I understand what is going on in, for example, Ted Cruz's head when he says that "voter fraud is real.  It is a problem ... Voter fraud has been persistent from the very first election that has ever occurred."  There is no there there, but I get what he is up to.

 

That is not to say that this is not puzzling, even on its own terms.  Particularly coming from someone who has claimed merely to be representing people whose unspecified "concerns" about the 2020 election supposedly need to be closely examined, I understand neither why Cruz is now saying unequivocally that people's worries about voter fraud are based in fact, nor why he is backing up that claim with something as pathetic as: "There's always been fraud, I mean, amirite folks?!"

 

But as Professor Dorf pointed out in his column yesterday, while it is truly baffling to think about what Cruz might have been thinking when he put his name on an embarrassing Supreme Court submission, it is quite easy to know what Cruz is doing in the larger sense: he is, as always, seeking "advancement in the right-wing-o-verse."  Moreover, although it is impossible for me to understand why what Cruz and his ilk are doing brings thrills to the people to whom these things are pitched, I can follow the nakedly corrupt logic: the rubes like Trump and owning the libs, so ambitious and shameless people praise Trump and try to own the libs.

Peeling back that additional layer, I can even still "get" the line of thinking from Trump supporters themselves.  Much (too much) has been written about whether it is racism, economics, despair, or something else that is the central motivation of the new Republican/Trump party, but one can still look at any given situation and say: "Ah, I see, this is about a dangerously misconceived notion of personal freedom, so they are cheering when Generic Republican A tells everyone not to wear masks, and also when Generic Republican B tells everyone that the omicron variant is a Democratic Party plot to control people's lives and win the midterms."  Again, there is no sense to this, and each new low is surprising in its way.  But once the shock subsides, it all fits.

Except for one thing.  The latest right-wing crazed attack on education mostly makes internal sense, but the idea that parents should be shocked that educators want to teach their children ... you know ... facts and ideas still makes no sense to me.  And why should it?

With Amici Like These: Two Awful Briefs From Mississippi's Insurrectionist Friends

 by Michael C. Dorf

On Wednesday, the Supreme Court will hear oral argument in Dobbs v. Jackson Women's Health Organization, a challenge to Mississippi's Gestational Age Act, which, with limited exceptions, forbids abortions after 15 weeks into pregnancy. The law clearly violates the Constitution under existing doctrine. To be sure, Mississippi's original certiorari petition contended that the questions it presented "do not require the Court to overturn" Roe v. Wade or Planned Parenthood v. Casey, but the state's merits brief and numerous supporting amicus briefs ask the Court to do just that. And for good reason. Mississippi cannot plausibly win the case otherwise. As Judge Patrick Higginbotham wrote for the Fifth Circuit panel that struck down the law, "[i]n an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability," which occurs well after 15 weeks.

That is not to say it's impossible to imagine a completely dishonest opinion from the Supreme Court ruling for Mississippi but purporting to leave existing precedent undisturbed. Perhaps the Court will say that viability now occurs earlier than it did in 1973--which is sort of true but irrelevant in Dobbs. Earlier this month, the Guinness Book of World Records recognized a baby born at 21 weeks gestation as the most premature infant ever to survive. That's terrific news for the baby and his family, but as even the physician who achieved this medical miracle acknowledged, at 21 weeks the odds against survival are very very long. And also, 21 weeks is not 15 weeks. Put simply, if the Court wants to rule for Mississippi and lie about what it's doing, the falsehood will be apparent for anyone who cares to see it.

So maybe the Justices are planning to tell the truth. The Supreme Court does not review federal appeals court judgments that correctly apply current case law, unless they conflict with other lower court rulings (and the Fifth Circuit decision does not) or the four or more Justices who voted to grant review are considering changing the law. Accordingly, there is a good chance that the Court will eliminate or curtail the abortion right in Dobbs.

Regular readers of this blog know I would not welcome that outcome. An amicus brief on behalf of myself and twelve other constitutional scholars offers the Court reasons why it should not overrule its abortion precedents. In the balance of today's essay, I want to highlight two very bad amicus briefs filed in support of Mississippi. Interestingly, they come from prominent opponents of representative government.

Beyond Rittenhouse: The Future of an Armed Public

 by Michael C. Dorf

In two articles published earlier this year, I addressed the problem of armed clashes at rallies, marches, and protests, referring to the Capitol insurrection and other lethal events--including Kyle Rittenhouse's conduct--in the introduction to each article. Because I do not teach, nor am I otherwise an expert in criminal law, I do not have anything especially noteworthy to add to the voluminous commentary that we have already seen on the Rittenhouse verdict last week. Instead, I'll focus my attention on the broader problem of political violence and the still broader problem of gun violence. I shall, however, refer back to one aspect of the Rittenhouse case below.

The Dangers of Political Despair, or, Put On a Happy Face

by Neil H. Buchanan

 

In one of my Dorf on Law columns last week, I acknowledged the glaringly obvious reality that my mood in writing about the future of the US political system can reasonably described as despondent.  I then added: "Even people as pessimistic as I am, however, never quite give up hope.  I have never told anyone, for example, not to bother trying to save the American constitutional system.  Indeed, I have said that I admire people who are unwilling to give up until the fight is finally lost."

It turns out that I am hardly the only person who is struggling with the sense of doom that hangs over American constitutional democracy.  More than 150 academics have now signed a letter calling on Democrats in the Senate to suspend the filibuster and pass the Freedom to Vote Act.  They write: "This is no ordinary moment in the course of our democracy. It is a moment of great peril and risk."  They say that all is not yet lost: "Defenders of democracy in America still have a slim window of opportunity to act."  And then the pessimism: "But time is ticking away, and midnight is approaching."

That was a good letter.  People who follow the US political scene cannot help but groan upon reading it, however, because there is still apparently zero chance that Joe Manchin and Kirsten Simema will do what is necessary.

 

Should despondency thus give way to despair?  No, but the political imperatives are going to make the next few years truly odd, even if we find a way to thread the needle and move back toward political sanity.  How can we alarm people enough to motivate them but not so much that they simply give up?