Eugene deserves a special thank-you for giving me this opportunity to write at his blog. The Volokh Conspiracy. Thank you! TVC‘s readers. I was writing this week’s posts and came up with a new way of seeing my project. Your comments gave me more ideas. (For anyone who is interested in the Georgetown Journal of Law and Public PolicyArticle that I intend to publish in the future. On the basis of your feedback and these posts, I’ll revise the draft I currently have. (I expect to upload the revised draft before February 1.
Dobbs, v. Jackson Women’s Health CenterThe case is before the Supreme Court. Both the litigants as well as most observers believe the case raises the question of whether Roe V. Wade(1973). Casey v. Planned Parenthood of Southeastern Pennsylvania(1992) should not be changed or confirmed. During oral argument in DobbsChief Justice Roberts examined whether these cases give women fair chances to have abortions. However, not all cases are eligible for the same level of viability. This is in direct contradiction to what the courts have interpreted as a presumption that women who are pregnant are entitled to federal substantive due processes to obtain abortions at the time of fetal viable.
Although one can certainly understand why the Chief Justice explored this interpretation, as Monday’s post claimed it is not a narrow reading but a rewriting of RoeAnd Casey. The judgment was in, as Tuesday’s posting showed. RoeIt was a declaratory ruling declaring the Texas abortion statutes in question unconstitutional. This was also demonstrated in Tuesday’s posting. Primo facieIf a state law restricts the rights of pregnant women to have an abortion before they are viable, it is a violation of federal substantive due process.
It is essential to, as Wednesday’s blog post demonstrated. RoeJudge’s decision was also based on another reason: A state statute can be facially declared unconstitutional if they violate the right to which it refers and if these violations appear substantial in comparison with the possible situations in the law could be implemented constitutionally. Yesterday’s blog post demonstrated this. CaseyThese two factors were used in 11 Court cases to make other state restrictions on abortion unconstitutional. The law was challenged by the Mississippi Gestational Age Act (the MS GAA). DobbsThe majority of abortions are prohibited after 15 weeks, but it is possible to have an emergency abortion. RoeThese cases are now overruled. Their holdings call for the GAA to be declared inconstitutional.
This week, I will respond to the feedback that I received. ReaderY wonders, because “Roe had ordinary standing,” “it’s not clear … that overbreadth was anything to anything the Roe court did.” ReaderY agrees. OneThe effect of excessive breadth is to loosen the rules. ReaderY asserts that standing relaxation refers to the OnlyWe disagree with the overbreadth effect. Overbreadth also has significant other effects, as Wednesday’s blog post explained. If a party with standing challenges the constitutionality a statute’s validity, the overbreadth doctrine gives her the right to critique the statute and its impact on third parties. A law that is too broad can be declared unconstitutional, not just as applied to the challenged party but also its face. That brings me back to my most fundamental claim from Wednesday. The holding on Roe, an inquiring lawyer needs to start with the judgment—a declaratory judgment, that the challenged Texas statutes were unconstitutional on their faces. The statutes must be declared facially invalid. RoeThe Court had to determine that the Court “swe” them.[pt]Too broad.
Richard Re questioned me offline on Wednesday about my restatement overbreadth doctrine. I was convinced by his questions that I would like to correct and make an observation. The standard black-letter version of overbreadth doctrine must meet two conditions, as I said Wednesday. If the illegitimate application seems substantial relative to the Constitution, or if the statute cannot be narrowly interpreted to resolve the constitutional issues, a statute is not constitutional on its own. Correction: I corrected both these requirements on Wednesday. Broadrick v. Oklahoma (1973). The second requirement was not my fault. Broadrick. You can get it from such cases as City of Jacksonville v. Erzoznik(1975), Dombrowski v. Pfister (1965).
My observation: I don’t have a comprehensive review of overbreadth caselaw, but my impression is the Supreme Court abort cases use the “no readily-apparent restricting construction” requirement less often than any other cases. It is discussed in the partial birth abortion case. Stenberg v. CarhartHowever, it is not in RoeBoth in the majority of cases. It’s not clear if my impression was correct. It’s not clear what this means, if so. What do readers think?
There is another possibility. Here’s another possible objection. But what about those cases and passages in which restrictions on state abortion were made constitutional? One example is chosen only for its relative recentness. Ayotte v. Planned Parenthood of Northern New England (2006), which upheld from challenge a state parental-notification statute.) There are two things I can answer. The first is that the MS GAA conflicts with the 13 holdings in the cases I have studied. Cases like AyotteWhile they don’t make things worse, they don’t take away the conflict.
Second, each of these cases that uphold statutes is distinct. The Tuesday post demonstrated that a statute can regulate pre-viability of abortion without banning it. RoeIn all cases, courts must apply three legal principles. It is first that the restriction restricts constitutional rights prima facie. If the statute can be argued to regulate abortion but does not ban it, then the court has to decide whether the law is valid as a regulation for maternal health or another reasoned one. (In AyotteBecause it guaranteed parental rights and did not burden the rights of minors, the challenged statute was justified. If the statute is not, It is notIf it passes muster as an ordinance, the courts (third) will need to question whether or not it is too broad and whether it restricts pre-viability protected abortions. The MS GAA could not possibly pass muster as such a regulation—because it prohibits most abortions after 15 weeks. These cases, in which the Court makes the ramp at proposition 2, are different from those that continue on the road but go over the cliff to reach proposition 3.
I am now able to address an objection made by Lee Moore. I claimed that Tuesday’s argument was incorrect. RoeDiscussion on second-trimester maternal health regulations was dicta. Moore did not follow my argument. Moore did not follow my argument after I read it again. I am A Implementation of the dictumA statement in support of a judgment is not required in this case. RoeThe discussion of the maternal-health regulations in the second quarter were sufficient to confirm the decision that the statutes being challenged were unconstitutional. Texas laws prohibited any abortion except that which was necessary for the preservation of a pregnant woman’s health. Moore’s questions indicated that restrictions on abortion might be constitutional, if they are reasonable related to the maternal health of second-trimester pregnant women. Because the statutes in question prohibited abortion in large numbers, it was impossible to classify them as regulations. These laws kept abortion legal while making abortion safer. This is what the Court didn’t say. Roe It needed information about maternal-health regulations for the second trimester in order to back its conclusion that these statutes were unconstitutional. For the record, a lot of this was not. dicta became reasons for decision the very same day—in RoeCompanion case Doe V. Bolton (1973). These passages were discussed by me. RoeJust to show the difference between an a The dictum (Focus on a rationale for your decision.
Let’s say I did what I promised to do at the start of the week. Some readers may be curious: What impact do my arguments have? Dobbs? I support the traditional wisdom of while Dobbs Argument: The MS GAA conflicted with the holdings, and the main reasons to decide from RoeAnd CaseyThe Court has two main options: to confirm or overrule RoeAnd Casey. But, I have doubts that my arguments tip the scales in favor of whether RoeAnd Casey Should be confirmed or overruled.
The high court considers stare decisis Questions, balance multiple factors. I get these from Janus v. AFSCME(2018): The quality and consistency of the reasoning behind a challenged decision, in comparison to other decisions. Supporters of RoeAnd CaseyThese decisions, along with 11 others, have consistently applied two reasons to decision in each case. This consistency favors standing by Roe And Casey. Critics disagree. Roe And CaseyThey are often not well-reasoned and can lead to a misunderstanding of each other. stare decisisFactors can help them. However, these posts demonstrate that overbreadth doctrine can be an exception to the more fundamental principles regarding standing and remedies. These posts suggest that cases involving abortion apply an especially hard-edged version of overbreadth analysis. Critics might conclude that the main reason for abortion decision is because of this. Roe and later cases is not consistent—with principles that federal courts usually follow when they issue remedies and hand down judgments.
To sum it all, I don’t believe there is a satisfactory third choice. Dobbs. ReaderY’s last objection (which I want to close) is my thanks for sticking by me this week.): In the real world “[t]You almost never have more than one option. ReaderY and me define “option” in a variety of ways. The word “option” can be understood to mean something like, “a possible choice that an actor could make,” then Justices do have many choices and not only two or three. However, when I use the term “options”, I assume it has an ideal meaning. A “option” is a promise or satisfaction choice. There are only two options, and I’m not sure there is more.
Many of these doubts were well known by readers before this week. RoeAnd CaseyThey have settled all conventional readings. (Just go and read opinions by lower court federal judges applying them—like the opinions in the Fifth Circuit in Dobbs itself.) The burden for any “third way” strategy is to show that the traditional readings are wrong for at least 30 years. People are familiar with both the positives and negatives of traditional options, which is a good thing. By definition, NotConventional options are not as well-known. You can’t hope too much that an option you don’t know will turn out to be more beneficial than one you do. This week’s theory has serious legal issues. But these problems are difficult to comprehend until one realizes the difference between a successful overbreadth and an as-applied challenge.
It is possible that there may be another or even a fifth method of deciding. DobbsWithout reaffirming/overruling completely RoeAnd Casey. However, it is possible that a similar way will emerge between now and the summer. It should be asked by curious minds: “Why wasn’t this proposed earlier?” This is a promising idea, so why hasn’t anybody seen it? Dobbs? How difficult and what issues would such a rule of choice present?
I agree with the conventional wisdom of post-argument. DobbsIt is correct. This article is a revision of the exploratory theory. RoeAnd Casey. If they abandon the rewrite, I don’t think the Justices will come up with a more compelling rule of judgment. They should instead search for a fourth or fifth solution. Dobbs. Better to choose between the two obvious options—to overrule RoeAnd CaseyOr to confirm them.