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.

(1) The Chief's suggestion (which he made pretty strongly during the argument) that viability is dicta is wrong. It may have been dicta in Roe, but the Court has expounded and relied upon it in subsequent cases, including the 1976 Planned Parenthood v. Danforth. And lower courts have relied on it for nearly five decades.

(2) Based on their comments during oral argument, the only other Justice I count who might entertain the Chief's view is Justice Gorsuch, so at most the Chief would be announcing the judgment of the Court. It's hard to change the law in a lasting way with a plurality opinion. Justice Barrett--who seems to think that adoption is a universal substitute for abortion--and Justice Kavanaugh--who thinks it's a moderate position for the Court not to ban abortion of its own--gave every indication that they would prefer to simply overrule Roe and Casey rather than find a middle ground. Counting Justices Thomas and Alito for full overruling, that's four. And if those four went all the way, I strongly suspect Justice Gorsuch would go with them.

(3) The Chief's new standard would be a litigation engine. If 15 weeks is enough time, how about 14? 12? 6? At some point, the Court would need to draw a decidedly arbitrary line. Once having done that, the courts would be flooded with cases involving the question of what sort of late-breaking circumstances count for an exception or as-applied challenge. The Chief would not have taken the Court out of the abortion business.

To be clear, putting aside political mobilization consequences (which are unpredictable), I would prefer the Chief's moderate position to the complete elimination of the abortion right. I just don't think it will happen and if it does I don't think it will have the virtues the Chief thinks it will.