Dobbs and the Holdings of Roe and Casey

Eugene, thanks for taking the time to blog at my site. The Volokh Conspiracy! I am an avid reader and I love the work of TVCYou are a regular blogger at, and it’s a great honor to be one of them.

I am blogging about this U.S. Supreme Court case. Dobbs against Jackson Women’s Health Organization. Over the coming months, I will publish an essay in the Georgetown Journal of Law and Public PolicyHere’s a key line of argumentation Dobbs. Feedback on this post or the draft article is very welcome. The inspiration for this project stemmed from an oral argument, as you will see in the post. Dobbs. The case was decided on December 1. I have been thinking about the project for just a few months. It’s still my experiment to find the best way to communicate what I want to say, and I appreciate any suggestions.

This site is about intelligentia. DobbsSupreme Court examines federal constitutional abortion doctrine from a new angle. Conventional readings of the doctrine are: Roe V. Wade(1973). Casey v. Planned Parenthood of Southeastern PennsylvaniaThe 1992 law allows women to have abortions at any time until viability. This is the point when the chances of a fetus surviving outside the womb are highest. Mississippi passed the Gestational Age Act in 2018, which bans abortions beyond 15 weeks. This is except when there’s a medical emergency or fetal abnormality. The conventional readings for Roe CaseyYou are right that the GAA can’t be maintained without being overruled Roe CaseyIt prohibits abortions eight weeks prior to the first construction of viability. It is not surprising that the majority of oral arguments are in English. Dobbs Whether Roe CaseyShould be confirmed or overruled.

However, it is at most possible DobbsA third option could be used. A decision like this would permit states to limit abortions beyond what the Federal Constitution has permitted them to do in fifty years. On the other, however, it would still be a valid way of deciding. Roe Casey. At least one Justice explored this possibility during oral argument. Chief Justice Roberts was the first. Roberts, fair enough, was interested in a theory. DobbsLike the following: Roe CaseyWomen have a right of fair access to abortion in their pregnancies. However, a “fair” chance to vote does not mean that they can elect to abort until viability. The GAA is constitutional as a fifteen-week right gives women who are pregnant a fair choice.

The exploratory theory contradicts the opinions of other lawyers and judges. Dobbsa tendency to believe or desire. Both the Fifth Circuit and the district court assumed this. Roe CaseyMake the GAA inconstitutional. Judge Patrick Higginbottom, Fifth Circuit judge stated: “In an unbroken chain dating back to Roe V. WadeSupreme Court abortion cases established, affirmed, and reaffirmed a woman’s rights to elect an abortion after viability. The U.S. and both the parties’ lawyers presented oral arguments. The Solicitor General assumed the GAA conflicted with the abortion rights, as defined in Roe Casey.

This is why I understand the narrow meanings of Roe CaseyOral argument. These readings might have been plausible enough to allow pro-choicers or pro-lifers half of a loaf each. Dobbs. All the same, as the Chief Justice recognized in another case about overruling precedent—Citizens United v. FEC—the Court “cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” These posts and my draft article explore the possibility that these narrow, exploratory, fair opportunity readings are valid. Roe CaseyThey are possible. They are not, I find. These doctrines were declared and are now in force Roe CaseyThese points are well reaffirmed in Judge Higginbotham’s quote. Judge Higginbotham speaks with great authority, both in terms of the content and tone he uses to express it. It is possible to recite the Constitution in a more relaxed tone. Roe CaseyBoth readings were read in order to ensure a fair chance to abort.

This conclusion does not necessarily mean that it will or should be. Dobbs. It is possible for the Court to overrule Roe CaseyThe Court could reaffirm both of them as CaseyReaffirmed RoeThis was thirty years ago. I argue that the only way to escape is through this article and this week. The following are narrow readings Roe CaseyThey are actually rewrites. So in Dobbs, the Court will need to make the choice most observers saw after oral argument—to reaffirm Roe CaseyTo override them.

I think those conclusions are fairly clear—in the sense of being required, with certainty, when one applies controlling legal principles about judgments and precedents to Roelater on in the abortion case. However, the conclusion aren’t clear in the sense that they should be obvious. These are the facts Roe, CaseyIn addition to other Court abortion decisions the plaintiffs sought declaratory judgments stating that they were not satisfied with the state’s restrictions on abortion. After a court has declared a statute unconstitutionally too broad, other courts and lawyers will need to abandon their usual methods of spotting and defining judgments to apply the custom-designed overbreadth case law. These issues are not only difficult to understand, but they also have a significant impact on practice. Again, DobbsThese are the issues that could determine whether or not a case is made. Justice Clarence Thomas recently concurred in the opinion that suggested that all overbreadth doctrines were wrong and must be overruled. The bar and bench may be forced to rethink overbreadth, no matter what. DobbsIt turns out. The topics that we will be covering are timely and important. The Chief Justice made the suggestion that legal academic scholarship was trying to answer questions such as what 18th-century Hungarian evidence laws learned from Immanuel Kant a decade ago. I am not trying to make my article a rude article. My goal is to respond quickly and honestly to any questions the bench or bar need. You’re invited to join me this week.

My main points are again these: RoeIn subsequent Supreme Court abortion cases, a ruling was announced and enforced allowing pregnant women to choose abortions above the threshold of viability. RoeLater cases which read them NotTo guarantee the viability of abortion is more than a reading. It’s a rewrite. I’m hoping to show those claims this week through four additional claims.

Claim (1) sets forth the new judgment Roe. RoeDeclaratory judgment was rendered on four Texas criminal statutes, which penalize the performance of abortions. RoeThese four statutes are declared unconstitutional.

For the declaratory judgment to be rendered, two reasons were required. Claim (2) gives the second reason to declare the constitutional right in question. Primo facieA federal substantive process gives pregnant women the right to seek abortions after they reach the viability threshold.

Although the claim (2) explains why, it is not enough. RoeThe declaratory judgement was necessary because it also contained a rule concerning overbreadth. The second reason was to be decided in RoeThis is claim (3). A state law that prevents women exercising their right to choose a pre-viability pregnancy will be null. If the amount of abortions avoided seems significant relative to the possible (post-viability), abortions, the state may constitutionally ban them.

These reasons could be one-off or very well established. A lawyer who is interested in this subject would have to determine if they were followed and how often. This would be the subject of claim 4. CaseyThe Supreme Court followed 11 cases and the reasons of decision in claims (2) and (3) in order to issue judgments similar to the one in claim 1.

All four of these claims combined, the Mississippi GAA will be in conflict RoeThese are the two primary reasons that you need to make your decision. Roe, CaseyThese same reasons are also used in 11 additional cases.

Tomorrow, Wednesday and Thursday will be devoted to these four claims. Claims (1) through (3) each apply “precedents law and judicial authority” as I have been calling it. That field of law will be the subject of my discussion tomorrow. I will use it as a basis to show claims (1), (2). It is more difficult to determine what judgment was made in a case that voids a law facially too broad than in a regular case. To demonstrate claim (3), I will bring in excess breadth on Wednesday. By surveying, Thursday I will cover claim 4. CaseyAnd the 11 other cases that were relying on RoeThe reasons behind the decision by to declare state-abortion restrictions unconstitutionally broad. Your reactions to the first four posts will be my Friday focus. But I’ll be back tomorrow—to talk about the law of precedents and judicial authority.