This week the U.S. Supreme Court will consider Dobbs v. Jackson Women's Health Organization, a challenge to the abortion standards that the Court created in the final quarter of the twentieth century in Roe v. Wade and Planned Parenthood v. Casey. The Mississippi statutory prohibition on abortion after 15 weeks of pregnancy with exceptions only for severe abnormalities and medical necessity is up for review. Newspaper opinion pages have filled with prognostications about the current Court’s predilection for providing wholesale reconsideration of the late-20th-century Blackmun-Kennedy-O’Connor-Souter due process renderings. But any member of the legal or philosophic intelligentsia who is uncertain about whether the current Court will remain faithful to application of law in this case has not been paying attention.
Over the past two years the Court has received numerous urgent high-stakes constitutional questions involving matters like COVID restrictions and religious liberty, the reinvigorated federal death penalty, and aggressive exercises of raw regulatory power. In the vast majority of instances, the Court has settled on a constitutionally sound answer.
Across the spectrum, each of the nine Justices has stated a commitment to apply the law neutrally in every case. And each has longstanding, deeply considered views on the constitutional and precedential framework that is to govern that application.
The question is, where do the current Justices’ jurisprudential approaches lead, on the facts and legal claims of this case? The public record indicates with significant depth that for a majority of the Court here, that answer will be consistent with the constitutional text, history, and tradition. Just last year in June Medical Services LLC v. Russo, for example, four justices declined to join the Court’s latest foray into abortion standard-setting and would have upheld the challenged Louisiana restriction. And the records that the Court’s two newest members amassed prior to their nomination and confirmation follow suit.
In her academic scholarship, then-Professor Amy Coney Barrett indicated that she may approach stare decisis more similarly to her former boss Justice Scalia than to Justice Thomas who has repeatedly expressed willingness to revisit centuries of precedent. But in a law review article titled “Originalism and Stare Decisis,” then-Professor Barrett also indicated that one appropriate way to apply stare decisis would be simply to decline to review questions encouraging the Court to upend too much settled precedent. Here the Court has agreed to take up Mississippi’s question “[w[hether all pre-viability prohibitions on elective abortions are unconstitutional.” All accounts indicate that Justice Barrett will labor to faithfully answer that question.
Many cite Justice Brett Kavanaugh as the new bellwether for the Court. His record, too, is sound on faithful and careful consideration of the law.
In October 2017, then-Judge Kavanaugh dissented from the en banc D.C. Circuit Court’s reconsideration of the claim of an immigrant minor who asserted a constitutional right to receive an abortion while in federal custody prior to her transfer to private legal guardians. In Garza v. Hargan, Kavanaugh rejected that claim, calling the en banc court’s ruling a “radical extension” of the Supreme Court’s abortion jurisprudence. Within four weeks, President Trump issued an updated list of potential Supreme Court nominees — a group of five new names that would form the well for President Trump’s next, and final two, nominees.
Earlier that year, Kavanaugh had provided even greater insight into his own individual understanding of the proper constitutional interpretive approach. In a Constitution Day lecture at the American Enterprise Institute, Kavanaugh delivered a tour de force his explication of the constitutional priority of discerning the proper meaning of constitutional text and structure and remaining committed to history and tradition rather than improvision in judicial resolution. He reflected on the constitutional framers’ belief that “in order to protect individual liberty, power should not be concentrated in one person or one institution.” He described the Constitution as primarily a document of majestic specificity” and noted those words have objective meaning that bind legislators, executive officials, and judges — absent constitutional amendment.
Kavanaugh then identified former Chief Justice William H. Rehnquist as his first judicial hero. Tellingly, Rehnquist authored the Court’s 1997 landmark opinion in Washington v. Glucksberg, which concluded there is no substantive due process right to assisted suicide. Glucksberg also expounded that there is no constitutional protection in the Fourteenth Amendment Due Process Clause for any claimed liberty that is not “deeply rooted in this Nation’s history and tradition.
Kavanaugh praised Rehnquist for “righting the ship of constitutional jurisprudence” and bringing about a “massive change in constitutional law. In his list of noteworthy Rehnquist opinions, Kavanaugh included the jurist’s 1973 dissent from Roe v. Wade. Rehnquist had concluded that states may legislate any abortion restriction other than a prohibition when a mother’s life is at risk. And lest one protest that Kavanaugh’s praise would have been fainter if Rehnquist had written Roe on the canvas of an already-court-defined abortion right, Kavanaugh’s next point was to praise Glucksberg, describing it as obviously inconsistent with the approach of Roe and Casey.
A right to freedom from abortion restrictions is no more “deeply rooted” under the Glucksberg standard than the claimed assisted suicide right evaluated in that case. The Glucksberg opinion identified an 1828 New York statute as the first statutory assisted suicide prohibition, with common law limits governing prior to that time. Justice Blackmun’s Roe opinion dates the first state statutory abortion regulation even earlier in 1821, with common law restrictions applicable before then.
And what of stare decisis? Well, the Glucksberg standard was delivered, and applied to a Fourteenth Amendment substantive due process claim, after the Court decided both Roe and Casey. And the Court’s own progressive majorities who have grasped at ever-changing standards over the years to hold unconstitutional each new disfavored state abortion law have already removed much of the potency from Roe and Casey. Roe relied on a trimester framework, Casey gave the nation the “undue burden” standard and viability line, and Whole Women’s Health invoked a “cost-benefit” standard in 2016.
So where is the law to be applied here? What exactly would be the law to overrule? More, technological developments in the years since Roe and Casey have moved the line on the precise timing of viability. And technological advances continue to reveal human characteristics of the pre-born at increasingly early stages of fetal development.
Perhaps Brown v. Board of Education, then, along with Glucksberg, provides a helpful model in Dobbs. The Court in Brown was squarely presented with the question whether to continue to apply to public education the “separate-but-equal” doctrine of Plessy v. Ferguson. Prior to Brown, the Court had ruled against several educational inequities under the Plessy doctrine. But the allegedly “equal” treatment of segregated schoolchildren at issue in Brown, like the pre-viability regulation at issue in Dobbs, meant the Court could reach the correct constitutional outcome only by revisiting the preexisting judicial standard itself.
So the Brown Court acknowledged the changed circumstances of the twentieth century that heightened the importance of public education within the American system, just as changing circumstances in the twenty-first century have heightened awareness of the humanity of the pre-born. The Brown justices also recognized the inexcusable damage inflicted on children by segregation and concluded “that in the field of public education the doctrine of ‘separate but equal’ has no place.”
The Brown Court did not use the term “overrule.” It did not have to. Everyone understood that the Court’s moral determination to apply the constitutional standard of “equal protection” to every human life, to the vulnerable and powerless, threw Plessy off the books and ushered in a new era of constitutional fidelity. The opinion clearly announced that “segregation is a denial of the equal protection of the laws.” In the same vein, if members of today’s Court adhere to Rehnquist’s “deeply rooted” standard, the Court will acknowledge that the late 20th-century creations of the viability, “undue burden,” and trimester frameworks do not inhere in the Fourteenth Amendment Due Process Clause.
The most constitutionally correct outcome in Dobbs would be for the Court to conclude that the Fourteenth Amendment Due Process Clause—a guarantee of process protections—contains no substantive right. An approach consistent with recent precedent that also would effectively reverse Roe and Casey would be reliance on Glucksberg to resolve that the Court will no longer recognize any asserted abortion right that is not deeply rooted. Both approaches would lead to the clear conclusion in Dobbs that the challenged Mississippi law is constitutional. Both approaches would reverse the tacks of Roe and Casey and return them to the dustbin of history. Both approaches would remove abortion policy from jurisprudential wanderings under the U.S. Constitution’s due process clauses and return it to elected legislatures representing the American people and families.
Jennifer L. Mascott (@jennmascott) is Assistant Professor of Law and Co-Executive Director of the C. Boyden Gray Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School. She is also a former law clerk to Justice Clarence Thomas and then-Judge Brett M. Kavanaugh.
