by Michael C. Dorf
On December 1, the Supreme Court will hear oral argument in Dobbs v. Jackson Women's Health Organization, in which Mississippi asks for either an outright overruling or serious curtailing of the cases recognizing a constitutional right to abortion. On Monday of this week, amicus briefs in support of respondent were due. Just as it received a boatload of amicus briefs decrying abortion in July, so on Monday the Court received a whole lot of briefs urging the justices to affirm the lower court decision invalidating Mississippi's ban on most abortions after (what it defines as) 15 weeks' gestational age. Today I'll take as my point of departure the amicus brief with which I'm most familiar--one filed on behalf of me and 12 other constitutional law scholars (Lee Bollinger, Erwin Chemerinsky, Sherry Colb, Dan Farber, Joanna Grossman, Leah Litman, Martha Minow, Jane Schacter, Suzanna Sherry, Geof Stone, David Strauss, and Larry Tribe).
The core of our argument goes like this: Mississippi is plainly wrong in its contention that the abortion right has no connection to other rights the Court has recognized, and therefore repudiation of the right on that basis would jeopardize all unenumerated constitutional rights, including to marriage, against sterilization, and against forced abortions. Likewise, the Court's backup argument that the viability line should be abandoned as unprincipled and unworkable is wrong; there are sound reasons in principle for the line as an original matter, which is further supported by stare decisis.
Although we argue forcefully that viability is not an arbitrary line, here I want to argue that even if it were arbitrary, that would not be a reason to abandon it. Our brief doesn't make this argument exactly, but it gestures in the same direction when we say this:
Mississippi’s unfounded complaints about arbitrariness of the viability line ring hollow considering the lawlessness and confusion that would follow overturning Roe and Casey, as the State implores this Court to do. Such a reversal would lead to inconsistent directives and would leave women and indeed, the general public, in the dark about the state of the law . . . .
Now I'll elaborate.
Suppose you think, as a majority of Justices to have served on the Supreme Court over the last five decades have thought: (1) that the government should only be permitted to override the very strong and thus constitutionally protected liberty interest in freedom from forced pregnancy and childbirth if doing so is necessary to serve a countervailing compelling government interest; (2) that the government's interest in mandating gestation of zygotes and embryos is not compelling but that its interest in preventing infanticide is; and (3) that therefore there is a right to abortion early in pregnancy but not late in pregnancy.
Now suppose you are a judge deciding an abortion case as a matter of first impression. You need to decide when--at what point between conception and birth--the government's interest in the life of the fetus becomes compelling. You might be persuaded that the right line is viability. Or you might think that it is something else, like fetal sentience. Or perhaps you are enamored of the historical approach, so you choose the earlier developmental stage of quickening. Or maybe you think there is no principled way to decide, so you split the difference and allow states to forbid abortion (subject to various exceptions) after the midway point in pregnancy.
One thing you would not do is simply throw up your hands and say that states can ban abortion as early as they like, because that would contradict your conclusion that there is a constitutional right to early-stage abortion. Nor would you throw up your hands and declare that states cannot forbid abortion even moments before a complication-free delivery of a healthy baby, because that would contradict your conclusion that there is no right to abortion (except in very limited circumstances) late in pregnancy. Even if you had a difficult time deciding among the various dividing lines offered in the prior paragraph (viability, sentience, quickening, halfway point), you would pick one of them or something similar because each is clearly superior to the extreme alternatives of conception (no abortion right) or birth (absolute abortion right).
To be clear, I think there are principled grounds on which to prefer viability to the other possibilities, but for the sake of argument, let's assume that someone finds the arguments for a number of these lines more or less equally persuasive, so that their choice from among them could be described as at least somewhat arbitrary. Is that a reason to abandon the line in a later case? Unless one is persuaded by some new argument that there is a very strong principled case for some other, unique line, the answer is no.
I can illustrate the point with a case we cite in our brief. In Gerstein v. Pugh, the Supreme Court held that the Fourth Amendment requires that a person arrested by the police pursuant to a valid exception to the warrant requirement is entitled to a prompt judicial determination that there was probable cause for the arrest--which substitutes for the determination that would have been made by a neutral magistrate had a warrant been required. Sixteen years later, in County of Riverside v. McLaughlin, the Justices confronted a question left open by Gerstein: what counts as "prompt?" The Court might have adopted a totality-of-the-circumstances or similarly vague balancing test, but recognizing the need for providing guidance to police departments and lower courts, it decided to fix a period of time.
Just as the Court that decided Roe knew the answer to when? could not be conception or birth, so the Court in County of Riverside knew the answer to its when? question could not be immediately or whenever you get around to it. The question was what point to choose in between the two obviously incorrect extrema.
For reasons that need not concern us, the majority thought the best answer was 48 hours, while the dissent thought it was 24 hours. Sensibly, no one said well, any amount of time we choose is somewhat arbitrary, so the state can hold people indefinitely. Everyone recognized the need to draw some line. Reasonable people can differ over whether 24 hours, 48 hours, or some other number of hours in that general ballpark was correct, so the choice among them was somewhat arbitrary. But that's not a reason to abandon it in a later case.
To see why, suppose that Barry represents an arrestee who was brought before a judge 40 hours after arrest, in compliance with County of Riverside. Barry wants to argue that the Court got it wrong in County of Riverside. Barry would lose in the lower courts, which have to adhere to SCOTUS precedent on the books, but suppose he somehow got the case to the Supreme Court. Barry could argue to the Court that really there is no principled difference between 48 and 24 hours, so the choice between them is arbitrary, but that hardly shows that 24 is a better line than 48. It merely shows that when the Court was first deciding the question, it could have chosen 24 instead of 48. But because it chose 48, that figure has the force of stare decisis going for it, whereas 24 does not.
Meanwhile, there is a further problem (which our brief does expressly invoke) that would arise if the arbitrariness of some line at X were a reason to reject it in favor of an equally arbitrary line X-minus-Y: the procedure has no logical stopping point other than zero. In the next case someone will say that X-minus-Y is arbitrary, so the Court may as well endorse X-minus-Y-minus-Z. And so on, until the somewhat arbitrary choice of one of various possible middle ground lines has been whittled away to an extreme of nothing.
To return to a less abstract example, if the Court in Dobbs says 15 weeks is okay because it's no less principled than viability, in the next case the Court will face a case involving a shorter period--like Texas's six-week cutoff--and before too long the supposed arbitrariness of choosing one of a number of possible reasonable middle grounds will lead to the adoption of a clearly unreasonable and extreme position.
In Barry's case, a principled showing that 24 hours is a better interpretation of the Fourth Amendment than 48 hours could suffice to justify overruling County of Riverside. Likewise, a principled showing that some point earlier in pregnancy (like quickening or even conception) is a better interpretation of the Fourteenth Amendment than viability could suffice to justify overruling Roe and subsequent cases. But in my hypothetical example, Barry has not made such a showing. Nor has Mississippi made anything like such a principled showing in Dobbs. The mere claim that 48 hours or viability is arbitrary--even if fully credited--shouldn't do any work for the would-be precedent overrulers.