On the Legal Issues in Dobbs v. Jackson Women's Health Organization

 

On the Legal Issues in Dobbs v. Jackson Women’s Health Organization.

December 2, 2021

 

This post is mostly an exercise in legal analysis. So let me say right at the beginning that I am not a lawyer. I used to be lawyer. I practiced law for over twenty years. I have a JD degree from the University of Oregon School of Law. I resigned from the Washington State Bar Association several years ago when I changed my profession from law to Christian ministry. I of course still have my legal training and experience. I have based what I say here on that training and experience.

On December 1, 2021, the United States Supreme Court heard oral argument in the case of Dobbs v. Jackson Women’s Health Organization. That case involves the constitutionality of the Gestational Age Act of the state of Mississippi. Passed in 2018, that act bans nearly all abortions after fifteen weeks of pregnancy. It has exceptions for medical emergencies and severe fetal abnormality. It does not have exceptions for rape or incest. Some Mississippi state legislators made it clear when they passed the act that they intended it to be a legal challenge to Roe v. Wade, 410 U.S. 113 (1973), about which more below. These legislators said that they had chosen to challenge Roe when they did because the ideological makeup of the Supreme Court changed when President Trump put three justices on the court—Neil Gorsuch, Brett Kavanaugh, and Amy Barrett—who had indicated a willingness to overrule Roe. The trial court and the Circuit Court of Appeals that heard the case both enjoined enforcement of the Mississippi law because they found that it violates the right to abortion that Roe established. Because in Dobbs the state of Mississippi is seeking to have the Supreme Court overrule Roe, our discussion of the legal issues in the case and its possible outcomes must begin with the current state of the law with regard to abortion.

In 1973 the United States Supreme Court issued its decision in the case of Roe v. Wade. I remember reading that decision when I was in law school several decades ago. I thought then that it was one of the most poorly written and reasoned Supreme Court decisions I had ever read, though I mostly supported the case’s holding. That holding was in brief that the Fourteenth Amendment to the United States Constitution creates a personal right of privacy that includes the right to an abortion that no state may unduly infringe. The court cited Griswold v. Connecticut, 381 U.S. 479 (1965). Though the constitution never mentions a right of privacy, Griswold found a personal right to privacy in that constitution. It used that right to invalidate a Connecticut state statute that prohibited contraception. In Roe the court extended Griswold’s right of privacy to abortion within the first trimester of a pregnancy. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the court modified Roe’s first trimester standard to one of fetal viability, which the court said would generally allow abortions up to twenty-four weeks of pregnancy. The Casey standard is not fixed at twenty-four weeks, but the Mississippi statute at issue in Dobbs reduces Casey’s general rule of twenty-four weeks to fifteen weeks and makes the cutoff after fifteen weeks far more rigid than Casey made its twenty-four weeks standard.

There is a foundational issue that we must address if we are to understand how the U.S. Supreme Court (and lower courts for that matter) function. There are two basic hermeneutics, that is, two theories of textual interpretation, that judges use in deciding the meaning of a constitutional or statutory provision. One such hermeneutic, which I have elsewhere called the modernist one, holds that any text has only one meaning. That meaning was fixed at the time the text was written and is the meaning the author(s) of the text intended it to have. This way of interpreting the Constitution, usually called strict constructionism, holds that every part of the Constitution has today and always has had only the meaning the framers of the Constitution who wrote it intended it to have. More conservative judges usually use strict constructionism more or less rigidly in their interpretation of constitutional provisions. The judge’s task in this way of understanding it is to determine what a constitutional text meant when it was written and to apply that meaning to the case the judge is considering.

The other hermeneutic, which I have elsewhere called post-modern, holds that texts, including the U.S. Constitution, can have meanings that change with the changing contexts in which the text is being used. The judge’s task in this way of understanding textual interpretation may well begin with an understanding of the text’s original meaning, but it doesn’t end there. A judge using this hermeneutic must discern what the text can and should mean in the context from which the case before the court has arisen. That meaning may well be different from the text’s original meaning. These two hermeneutics will produce two different conclusions about the existence today of a constitutional right to privacy.

A judge working with the modernist hermeneutic would ask if the Fourteenth Amendment was intended to create a personal right of privacy when it was drafted and added to the U.S. Constitution in the late 1860s. If this judge finds the answer to that question to be yes, she then proceeds to a consideration of what that right means with regard to the case before her. If she finds the answer to the question to be no, she proceeds to decide the case at issue with no private right of privacy to apply to it. It is indeed highly probable that a judge working with this hermeneutic would focus on the fact that the Constitution does not expressly create a right of privacy and on the virtually certain historical truth that the drafters of the Fourteenth Amendment never intended the Amendment to create a personal right of privacy. This judge would almost certainly hold that there is no such constitutional right of privacy.

A judge working with the other hermeneutic, the one I have called post-modern, would want to know what the original intended meaning of the Fourteenth Amendment was, but his consideration of whether or not there is a constitutional right of privacy would not end there. If this judge found that the Fourteenth Amendment was originally intended to create a right of privacy he would then consider what that right means today and how it applies to the case he is deciding. That meaning may well have changed in the more than one hundred years since the Amendment was drafted and adopted. If the judge concludes that the right does indeed have a new meaning in its current context he would apply that meaning to his case.

A judge working from this perspective, however, would almost certainly find that the Fourteenth Amendment did not create a right of privacy when it was drafted. It seems certain that those who wrote and adopted the Fourteenth Amendment never considered creating a personal right of privacy and never intended the amendment to create one. While the strict constructionist’s consideration of the existence of a constitutional right of privacy ends there, this judge’s consideration of the question does not. This judge will consider whether the changed context of the present case and the status of society and the law today make it possible or essential for us to conclude that the Fourteenth Amendment means something different today than it meant when it was adopted so long ago. This judge might well conclude that our culture’s understanding of personal liberty and autonomy has expanded significantly since the late 1860s. When this judge applies the Fourteenth Amendment  to that changed cultural context he may well find that in that context it is reasonable to read that amendment as creating a personal right of privacy that its drafters never intended to create. So he finds that there is indeed a constitutional right of privacy despite the fact that the Fourteenth Amendment never expressly says that there is. He then applies this right to the case before him. This is precisely what the Supreme Court did in Griswold, the case on which Roe is primarily based. It is virtually certain that the conservative justices on today’s Supreme Court are strict constructionists. They almost certainly consider the way Griswold and Roe find a constitutional right of privacy that determines the outcome of those cases to be grossly incorrect constitutional interpretation. They could in theory overrule Roe simply because they believe that it was decided using the wrong constitutional hermeneutic, although doing so would cast the legitimacy of a great number of Supreme Court cases into doubt.

In the public discussions Dobbs you may hear the phrase stare decisis. Stare decisis is a legal principle on which those arguing for the preservation of Roe rely. It says that cases in litigation should be decided on the basis of existing precedent. It is why lawyers argue to courts how previously decided appellate cases dictate that their side win their case. It is why written court opinions always cite older cases the way Roe cites Griswold. Stare decisis gives the law a certain stability. It makes it possible for people to know or at least suspect how a court likely would decide a matter with which the person is dealing. It allows lawyers to express opinions on that subject to their clients. When I was a junior associate lawyer with a law firm in downtown Seattle many years ago one of my most commonly assigned tasks was to find appellate cases that supported our client’s position in a case we were handling. If Dobb were to be decided solely on the basis of stare decisis the court would not overrule Roe because Roe is established precedent that has been in place for a long time.

Yet the United States Supreme Court does not always adhere to the principle of stare decisis. It doesn’t do it often, but on occasion the Supreme Court has overruled an older case that dictated a result the court knew was now wrong. The perfect example of the court doing so is how Brown v. Board of Education, 347 U.S. 483 (1954), overruled the older case of Plessy v. Ferguson, 163 U.S. 577 (1896). Plessy involved a challenge to the legally mandated racial segregation of railway transit in the state of Louisiana. A man of mixed race named Homer Plessy was arrested for boarding a “whites only” railway car. His defense was that the legally imposed racial segregation of the railway system was unconstitutional under the Fourteenth Amendment. The case reached the Supreme Court, which ruled against Mr. Plessy. It held that racially separate public facilities were not unconstitutional as long as the separate facilities made available to white people and to non-white people were equal. Plessy put the phrase “separate but equal” on which segregationists relied for decades to justify legally required racial segregation in the Jim Crow south into American law.

In the late 1940s the NAACP began an effort to end the racial segregation of public schools. That civil rights organization brought numerous lawsuits saying that racial segregation of public schools violated the equal protection of the law clause of the Fourteenth Amendment. The defenders of racial segregation cried “separate but equal,” never mind that the schools segregationist school districts made available to Black children were rarely if ever actually equal to the schools for white children. Several of these cases reached the Supreme Court and were decided together under the case name Brown v. Board of Education. Thurgood Marshall, later the first Black Supreme Court justice, argued the case for the plaintiffs.

In deciding Brown the Supreme Court considered an enormous. amount of sociological and other research on the question of the effect of racial segregation on school children who were discriminated against under the banner “separate but equal.” It unanimously concluded that racial segregation harmed those children even if the schools to which they were assigned because of their race were actually equal in quality to the schools for white children. It ruled that racial segregation of public schools violates the equal protection clause of the Fourteenth Amendment. In so ruling the court expressly overruled Plessy v. Ferguson. Societal attitudes toward race and racial discrimination were changing. In 1896 the court could say that separate but equal facilities were constitutional. In 1954 when Brown was decided it could not. Today those who want the court to overrule Roe point to Brown and other cases as precedent for the court overruling Roe. Stare decisis may save Roe, but it also may not.

One way that lawyers deal with legal precedents that militate against their client’s position in a case is to distinguish the facts of a previous case from the facts of their case. The facts of no two cases are identical, and sometimes the differences in the facts of two cases mean that an earlier precedent that one party argues applies to their current case actually does not apply to that case. Those arguing against the court overruling Roe have such an argument to make against using Brown as precedent for overruling Roe. A great deal had changed in American society and culture between in time of Plessy in 1896 and the time of Brown in 1954. People were becoming more aware of the inherent injustice of racial segregation. Black Americans had served in the U.S. military in both World War I and World War II, wars that we fought nominally at least in defense of freedom. Yet those American veterans came home to a country that denied them the freedom and human dignity for which they had fought overseas. A great deal of scholarly research on the effects of racial segregation that was not available to the Plessy court in 1896 was available to the Brown court in 1954. That research established that racial segregation of the public schools was unavoidable harmful. Those changes established that Plessy had been wrongly decided and should not serve as legal precedent any longer. The Supreme Court expressly overruled it.

There has been no such cultural and societal shift in our understanding of abortion between 1973 when Roe was decided and today. Only one thing has changed, the makeup of the Supreme Court. That court today is considerably more conservative than it has been in a long time. It is far more likely to adopt strict construction as its principle of decision making than it has been for decades. Some of the justices, primarily but not exclusively those nominated by Donald Trump, are far more likely to let their personal belief that abortion is grossly immoral influence their decision of the Dobbs case than any judge has any bustiness doing. A judge’s personal moral or religious beliefs should not be a basis of legal decisions, but far too often they are. They are likely to be again in Dobbs. The relevant difference between 1973 and 2021 has nothing to do with changes in foundational cultural and societal understandings. It has only to do with who’s on the Supreme Court. In theory who’s on the court shouldn’t make that much difference, though of course always it does.

There’s another difference between the Brown court overruling Plessy and the court potentially overruling Roe today. The Brown court overruled Plessy to expand the constitutional rights and the legal equality of American people who had been denied those rights and equality. If the court overrules Roe now it will do so to restrict the constitutional rights and the legal protection of fully one half (or a little bit more) of American people, namely of course, women. As horrifically racist and sexist as so much of its history has been and far too much of the country still is, our nation’s slow, not always consistent arc has been in the direction of greater personal liberty and autonomy not less. Professor Emeritus. Lawrence Tribe of the Harvard University School of Law, who is and for decades has been the country’s leading constitutional scholar, make the point that overruling Roe would reduce one half of the American population to a legal status lower than the other half. No one is trying to deprive men of autonomy over their own bodies. Those who seek to have the Supreme Court overrule Roe are trying precisely to deprive of women of a significant aspect of their autonomy over their own bodies. Overruling Roe would have precisely that effect on American women. Their constitutional protection of the right to make their own reproductive decisions would be gone. We would no longer be a nation in which all people enjoyed the equal protection of the law.

Although the outcome of Dobb may seem to be foregone, there are actually several possible ways the Supreme Court could decide the case. The outcome many of us want to see is that the court affirms Roe and finds the Mississippi law at issue to be unenforceable as unconstitutional. The outcome many of us expect and fear is that the court overrules Roe. If that happens the constitutional issues around state abortion laws will disappear, and the Mississippi law at issue will be fully enforceable. The legality or illegality of abortion and of any legal restrictions on abortion would become entirely a matter of state law. State laws that legalize abortion would remain in effect, but so would state laws that prohibit or severely restrict it.

An even more draconian outcome of Dobb is theoretically possible. The Supreme Court could overrule Roe, then go on to declare state laws that legalize abortion to be unconstitutional because abortion, they would say, deprives a person in the form of a fetus of life without due process of law in violation of the Fourteenth Amendment. The most extreme opponents of abortion would cheer such a result. A great many Americans would mourn it and probably engage in demonstrations or even riots against it. I trust that while this result is theoretically possible it is highly unlikely to be what the court does in Dobb.

There is a compromise result that is also possible. Chief Justice Roberts seemed to advocate it during oral argument of the case. The court could find the Mississippi law at issue valid without overruling Roe. The current state of the law as we have seen is roughly that abortion for any reason is legal until after twenty-four weeks of pregnancy. The law at issue reduces that number to fifteen weeks. The court could do again what it did in Casey cited above. It could revise the effect of Roe without overruling it by finding a fifteen week limitation on abortion to be permissible under Roe. To do so the court would probably have to find that a fetus is viable after fifteen weeks. That’s a legal and medical can of worms the court may well wish to avoid, but such an outcome of the case is perfectly possible.

An issue came up during oral argument of Dobb that is less a legal issue that it is a practical one about the legitimacy of the Supreme Court and its decisions. Roe has been the law of the land for forty-eight years. A majority of the American public does not want it overruled. During oral argument of the case Justice Sonia Sotomayor expressed grave concern over the effect overruling Roe would have on the perceived legitimacy of the court. She said that overruling Roe would tarnish the court’s reputation. Then she asked whether the Supreme Court would “survive the stench” that overruling Roe would create. She expressed the fear that overruling Roe would create the public perception that the court’s rulings on constitutional issues were political rather than legal. She asked: “If people actually believe that it’s all political, how will we survive? How will the court survive?”

Under our constitution the Supreme Court has no ability to enforce its decisions. It can’t force anyone to follow them. It can perhaps punish people for not following them by charging people with contempt of court, but even that doesn’t force a person to comply with a court decision. The efficacy of the Supreme Court as the highest court in the land depends entirely on the public perception that the court is a legal not a political institution. Several recent court cases have already cast doubt on that proposition. They include Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), which opened the floodgates for unregulated money to pour into our electoral process, and District of Columbia v. Heller, 554 U.S. 570 (2008), in which the Supreme Court held for the first time that the Second Amendment to the U.S. Constitution, despite its explicit reference to a well-regulated militia, creates a personal right to own firearms. There are no legal reasons to overrule Roe unless you believe that any Supreme Court case not decided under the constraints of strict construction is illegitimate, though doing that would cast the legitimacy of a great number of Supreme Court decisions into doubt. People disagree with Roe not for legal reasons but because they oppose the constitutional right to abortion that that case found in the Fourteenth Amendment.

Earlier in this piece I said that when I read Roe v. Wade in law school thought it was one of the worst reasoned and written Supreme Court cases I had ever seen. I still believe that to be true, but Roe has been the law for a long time. People have exercised the right it affirms for many years and for a great variety of reasons. Abolishing constitutional protection of that right would create a great outcry of anger across the country. Overruling Roe would indeed be a political not a legal act, and at least in theory the Supreme Court is a legal not a political institution. The legitimacy of the court will indeed be tarnished if it overrules Roe.

Clearly Dobbs has the potential to become a case of immense importance. It will be such a case if in its decision of the case the Supreme Court overrules Roe v. Wade. Though the Supreme Court has overruled existing precedent in the past, it would do so in Dobbs though there is no valid legal reason for doing it, only political ones. Overruling Roe would delight the right-wing Americans, most of them conservative evangelical Christians, who have demanded an end to Roe ever since it was decided in 1973. It would however infuriate those of us, both women and men, who could not countenance the elimination of a constitutional right that has been in effect for nearly fifty years on which millions of Americans have relied for a wide array of reasons. I believe that there will be massive protests in the streets of cities across the country if the court overrules Roe. True, public opinion should never be the basis of a legal decision. Public opinion controls electoral decisions not legal ones. Yet surely the Supreme Court must be most cautious as it considers overruling an established legal precedent like Roe when doing so would have devastating consequences for a great many Americans. It appears however that the court probably will overrule Roe in its decision in Dobbs. I’m afraid we’re in for some turbulent times if it does.