Thursday, September 23, 2021

An Arbitrary Line's Arbitrariness is a Feature, Not a Bug (Mississippi Abortion Case Edition)

 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.


Joe said...

The Biden Administration brief noted at one point that the state's main argument was the Roe itself was wrong. The alleged issue here is mere the viability line.

But, looking at the state brief, they led [as did the guy -- "architect" seems to be a bit grandiose -- behind the Texas law in that amicus brief] with Roe being wrongly decided. Why? There is apparently no right to choose an abortion as part of a wider right to ordered liberty.

I personally thought Casey altering the contours of the Roe trimester scheme reasonable, though disagree with the applications regularly, it being to me principled (if likely to be messy -- it's reasonable but not without problems) to tinker with doctrinal guidelines here.

But, the ultimate goal is not that, even if the short term result will not be a complete ending of Roe. The basic underlining principle of Roe is being attacked. The question presented is a bit of a scam.

kotodama said...

2nd paragraph: "the Court's backup argument that the viability line should be abandoned as unprincipled and unworkable"

Prof. D., was that maybe a Freudian slip (for lack of a better expression) and instead of "the Court" you meant to say "Mississippi"?

Everything you say make sense. To echo Joe (as usual), I see the problem as just that—shockingly!—MS isn't operating in good faith. They have no genuine desire to partake in an intellectual scavenger hunt to turn up a superior—but still arbitrary, of course—line to use. MS in truth wants an extreme position: no abortion, end of story. But it lacks the guts to say that. So instead it engages in the cynical, bad faith charade of feigning concern about the "arbitrariness" of the current line.

I realize we're talking about SCOTUS briefs, so you (Prof. D. et al.) have to be "civil" lest someone's fee-fees get injured, but that's what it really is.

To some extent I part ways with Joe since I didn't find Casey all that reasonable. I might have have felt differently had it been deciding the issue in the first instance. (That would be quite the interesting counterfactual to consider!) But no matter anyone's view of Casey, it seems like it already established the proposition that you can go, in Prof. D.'s words, from X to X-minus-Y. That is, first trimester to viability. I think that's pretty dangerous, since then what's stopping someone from pointing to Casey in support of going further to X-minus-Y-minus-Z?

And why is it always "leveling down" instead of "leveling up" when it comes to these kinds of lines?

egarber said...

From a pedestrian perspective, it seems obvious that there is a form of “delegated authority” to courts for filling in specifics once you break through the major gate. Concepts have to be instantiated practically here on planet earth. This is a little different, but as a matter of principle, you might as well say all the 8th Amendment precedents are arbitrary, right? What is “cruel”anyway?

Joe said...

I would add that I think Casey had various components (including reference to the choice being a matter of individual conscience and more focus -- given developments in the law -- on gender equality) that were helpful.

The altering of the test is basically a result of changing personnel as a result of altering political winds. Such is the nature of our system. The result is going to be some tinkering over the decades. On that level, the new test to me is fairly sensible.

I'm not sure how much difference it made on the ground. 2/3 of the plurality rejected "partial birth" bans. Waiting periods as applied still could be found inappropriate. Ideological scripts were more welcomed, but I think they should have been directly addressed using 1A arguments. It being "matter of conscience" helps there.

The retention of the viability line & a more expansive discussion of the legal basis of the right makes a direct attack on abortion not an honest application of Casey. Casey does in some degree invite more laws, including TRAP laws, though again, a honest application of the substantial obstacle in purpose or effect would stop that.

Dishonesty could be applied no matter the doctrinal code words. My support of Casey is in part a matter of pragmatic acceptance of the available options.

kotodama said...

To egarber's point, exactly. It's just what courts do. Whether it's a really vague and broad constitutional principle or even a very detailed statute, usually at least few things require some interpretation. And over time, as cases present themselves again and again with different facts, you need to articulate rules to deal with that. Otherwise starting from scratch each time with e.g. totality of the circumstances just becomes unmanageable and highly inefficient. I always feel a bit weird to call it "implied delegation" though. To me it's just part and parcel of the "judicial power" and common-law adjudication. Your foundation is not the common law of course. But you can still build on it in the same way.

Again, that's why the true battle here is not over how to draw the specific line. It's whether any line will be drawn in the first place.

To Joe's point, I don't disagree that Casey contributed some helpful things. I'll certainly take those along with the unhelpful stuff—might as well, right? But IMHO it wasn't reasonable to revisit a nearly 2-decade-old, perfectly fine precedent in the first place. Again, once that bridge is crossed though, you salvage whatever you can. Likewise, maybe things would be in a different place if the issue had never been addressed before.

I think it made plenty difference on the ground. For one, and maybe it's obvious, when the Court (acting via a majority) does something like this and alters a major precedent, I think it's safe to assume the majority at least intends for it to make a difference. And it did here for sure. Like you say, it certainly invited more and novel kinds of laws. I don't think it's enough to look at the just the outcomes of challenges to the laws either. Maybe a lot of challenges ultimately succeeded, and that's good of course. But just having to challenge a law takes a toll in resources, time, and pure stress. That accumulates with each new law. And you have to constantly worry about what's lurking around the corner. Like the SB8 proponents admitted, the goal isn't necessarily to suppress abortion through purely legal remedies—it's to generate a climate of paranoia and hopelessness so the pro-choice side just capitulates.

And again, in addition to the impact on the ground, Casey did give the green light to those who want to move the arbitrary line one step closer to an outright ban.

In any event, you are certainly correct that a determined majority isn't going to let the finer points of doctrine slow it down on the path to a desired outcome. I think I said a similar thing in response to Prof. B.'s recent post on constitutional "bugs" and "boobytraps".

Again, I absolutely welcome the good parts of Casey. It was better than the worse alternatives, of which there were plenty. But it wasn't as good as the better alternatives, the best of course being to have done nothing—i.e. keep Roe fully intact. An opinion full-throatedly reaffirming Roe could have said all the same good things as Casey did. It just would have omitted all the bad stuff. But that's not the world we inhabit obviously and I agree that a pragmatic approach means accepting Casey.

Unknown said...

I think you can make the argument as a general matter that where some arbitrary line must be drawn, it is the province of the legislature rather than the judiciary to draw that line.

Obviously, that doesn’t work in this case, where the question is over the existence and reach of a constitutional right. (A Constitutional amendment clarifying things — in either direction — would be superior to a 5-4 SCOTUS decision, in terms of legitimacy. That seems rather unlikely anytime soon).

kotodama said...

Legislatures do draw arbitrary lines of course. We shouldn't forget to mention administrative agencies too. It's just the level of granularity that varies.

Legislatures draft broad statutes, or sometimes detailed codes. Agencies, to the extent relevant, take it one level more granular with regulations. But even the latter won't suffice to decide individual litigated disputes.

You typically have to perform at least some amount of interpretation in the process of applying the statute, code, or reg in question. Even if one claims no interpration takes place at all, the mere process of deciding cases will necessarily sort them into different categories depending on the outcome. And if you decide enough cases, you can discern some kind of dividing line between the different categories. That is a line being drawn whether you acknowledge it or not. To me it just seems inescapable. I suppose if you really want to avoid acknowledging it, you could have decisions be black boxes where it's just 1 sentence of "judgement for A" or "judgment for B". But the line still gets drawn implicitly. And most times we have reasoned decisions, so that makes the process explicit.

I don't see the above as usurping the role of the legislature (or the agency as the case may be). It's a different, and complimentary, role that takes place at a lower level. That's one reason I don't like the concept of implied delegation because it suggests the courts are performing some kind of legislative function—albeit with tacit consent. To me it's just a separate function.

The idea that judges always have no or almost no discretion and they're just constrained by "objective standards" is a fantasy to me. Sometimes people might believe it naively, but often it's pushed in bad faith. A good example is Scalia's opinion in Heller where he listed the "presumptively lawful" categories of gun regulations. Those were basically made up based on what Scalia thought was good policy. I don't take issue with him exercising discretion to invent those categories (putting aside how I feel about the opinion overall). But I do have a problem with refusing to acknowledge the discretion he wields in the first place. I prefer the Stevens approach from McDonald where he "lays his cards on the table." At least that's honest and transparent; it also lets you readily evaluate what's happening and then critique as needed.

Laws are not mathematical formulae where you just supply the inputs and then get outputs, or where the same or similar inputs always get the same or similar outputs. If they were, then you wouldn't need lawyers to do judging. You wouldn't even really need people. The whole point is that interpreting and applying laws requires some level of judgment. And exercising judgment inevitably entails drawing some lines. That's expected.

A constitutional amendment explicitly establishing freedom of choice would be nice, but I would even settle for a federal statutory right. It's been noted by others that statutory rights tend to be very robust; maybe more so than constitutional ones even. For example, Social Security isn't constitutional, but regardless it's been extremely resilient. And it's certainly been under attack by reactionaries from day one into the present.

Joe said...

I don't really disagree with much of what is said to my reply but I still am not sure how much it really mattered on the ground given changing personnel. They tend to find ways, even without changing the tests, to decide things differently.

"it wasn't reasonable to revisit a nearly 2-decade-old, perfectly fine precedent in the first place"

There was a debate -- the people's representatives having a role in choosing the judges here & that is one way the law is changed -- on how "fine" it was. Casey was brought to determine if it was still fine after twenty years.

Casey did strengthen the equal protection component of abortion rights, gender equality in its infancy in 1973. As to the particulars of the exact test, I think that was more open to debate.

Cases already noted, e.g., that the medical knowledge that provided the first and second trimester line had changed. Somewhat nice disputes arose. A simpler test that provided a pre-viability rule made some sense.

Such tinkering is a more reasonable thing to do and is done in various areas of the law. And, until Kennedy left, the case reaffirmed abortion rights existed for a new generation. I agree accept there are difficulties as suggested in the reply, which I will just leave be w/o agreeing with all aspects since I think we agree on the basics.

Unknown said...

In the current political climate I think a federal law establishing (or extending) abortion rights is highly unlikely.

The national consensus is probably moderately pro-choice, if I had to guess, probably in line with Casey (virtually unlimited abortion in 1st trimester, extremely limited abortion in 3rd trimester, somewhere in the middle in second trimester). The problem for the pro-choice side is that while a majority notionally agree with them broadly, the single-issue voters are overwhelmingly pro-life. (I think you get a similar phenomenon with guns). I saw recently that something very small, like 3-5% of the electorate, cast a vote in 2020 with abortion as their primary concern. Trump got 90% of their votes.

There is just very little political upside to passing pro-choice legislation.

That’s my impression at least.

Joe said...

I would note "unlimited abortion" means the ability of having abortions (the problem cases usually are criteria that don't show up that early, such as sex specific abortions). Abortions are regulated in various ways.

The special interests problem is true enough & that causes problems for various "hot button" issues & is worsened by something like the filibuster. Some argue that one value of court review is that certain constitutional rights are protected from such groups, which often are influenced by illegitimate goals.

To reaffirm my "sham" argument, if you look at the amicus briefs (see, e.g., SCOTUSBlogs's Dobbs page), so many of them are not about the alleged specific issue at hand -- the viability line. One brief actually directly addresses that, arguing the case should be tossed back as improvidently granted since the state is trying to make it about Roe itself.

A brief such as one by experts on fetal pain is a rarity. Prof. Segall on Twitter also flagged an article providing an originalist argument for a "quickening line" that seems to hover around sixteen weeks. I found it unconvincing, but it is at least something that directly addresses the specific issue in the case.

Unknown said...

“ I would note "unlimited abortion" means the ability of having abortions (the problem cases usually are criteria that don't show up that early, such as sex specific abortions). Abortions are regulated in various ways.”

Yes, sorry if I was unclear on that point. It’s not my understanding that under Casey abortion can’t be regulated at all in the first trimester (I think even abortion absolutists would agree for example, that a state has the right to require abortionists to be licensed medical practitioners).