Prof. Eric Claeys (George Mason) Guest-Blogging on “Dobbs and the Holdings of Roe and Casey”

It’s a pleasure to announce that Prof. Claeys is guest blogging this week on his new article. Here’s the abstract:

The U.S. Supreme Court currently considers the case Dobbs against Jackson Women’s Health Organization. In DobbsThe State of Mississippi asked for the Court’s reversal Roe v. Wade (1973) and Casey vs. Planned Parenthood (1992). Many Justices agreed with this conclusion during oral argument. Dobbs fairly presents the question whether Roe and Casey should be reaffirmed or overruled. At argument, however, Chief Justice John Roberts explored an alternative theory. In this exploratory theory, Roe and Casey entitle women only to a fair or meaningful opportunity to obtain abortions during pregnancy. Neither Roe nor Casey entitles women to obtain abortions, the theory suggests, up to the time when their fetuses are likely to be viable after birth.

This Article studies that exploratory theory with the two most relevant sets of legal doctrines. Because the theory raises questions about what RoeCasey,And other previous abortion cases held, the Article summarizes general legal principles about precedentsAnd judicial authority. Courts rely on these principles when they identify the holdings, reasons for decision, and obiter dicta from earlier decisions. Because RoeCasey, and the other relevant decisions all considered overbreadth challenges to state abortion restrictions, the Article also summarizes the legal rules federal courts follow when they consider facial overbreadth challenges.

The Article applies those two sets of doctrines to RoeCasey, and 11 other subsequent cases in which the Court declared unconstitutional state pre-viability restrictions on abortion. In all of those cases, necessary to a judgment was this proposition of law: A state restriction on abortion violates the Fourteenth Amendment Due Process Clause if it restricts a substantial number of pre-viability abortions without justification. Both Roe,nor CaseyNor,? any of the other 11 post-Roe and –Casey decisions invalidating pre-viability abortion restrictions can be interpreted as narrowly as they would need to be for the theory explored at oral argument in Dobbs to be convincing or faithful to the Court’s case law.

This article will help you understand the different options. Dobbs. Justices might reaffirm. Roe and Casey,And they may overrule those cases. They cannot make a decision that is not in accordance with the standard legal rules regarding overbreadth and judgments.