Quickly dashing one off after today’s big news…
The Supreme Court has “granted cert” in Dobbs v. Jackson Women’s Health, regarding a Mississippi ban on most second- and third-trimester abortions. (“Granting cert” means it will hear the case.)
It is generally agreed that the Mississippi ban is incompatible with current Supreme Court abortion precedents (which are themselves, it must be said, incompatible with both the Constitution of the United States and the “higher law” to which Sen. William Seward, R-NY once referred). The Mississippi law was struck down unanimously by a lower court panel, and there is no split among the lower-court circuits.
However, in the lower-court decision, a concurrence by Judge James Ho essentially said, “I am required to strike this law down because of Planned Parenthood v. Casey, which is a garbage, barbaric, eugenic precedent… but it’s binding,” then got down on his knees and begged the Supreme Court to overturn Casey. This is not the first time in recent months that a federal appeals court judge has acted consistent with Casey and begged the Supreme Court to overturn Casey.
This is uncommon, but happens often enough on a range of issues, and sometimes the Supreme Court hears the pleas from the lower courts. For example, in Mozilla v. FCC (2019), left-wing Judges Millett and Wilkins upheld an FCC repeal of net neutrality rules under the NCTA v. Brand X precedent, but then each filed separate concurring opinions asking the Supreme Court to please please please reconsider the central holding of Brand X. (In the end, the Supremes never got the chance, because Mozilla chose not to appeal.)
Anyway. The Supreme Court will hear Dobbs v Jackson Women’s Health this fall. Mississippi presented three questions for appeal in its petition:
First, are all pre-viability abortion bans unconstitutional? (That is, is it constitutional to ban abortion before the 28th or 22nd week of pregnancy or so?)
Second, what legal standard should be used to analyze pre-viability abortion regulations — the Casey standard or the Hellerstedt standard? (If you don’t know what that means, don’t bother finding out right now.)
Third, do abortion providers have standing to sue against abortion regulations, or do only mothers actually affected by the regulations have that standing?
The Supreme Court agreed to consider ONLY THE FIRST QUESTION. Questions two and three were denied.
So the ONLY question the Supremes will consider this fall is whether pre-viability abortion bans are constitutional. That means there’s no possibility that the Court granted this case merely to decide some technical issue about standing, nor to clarify its holding in Hellerstedt. They have even, in some ways, denied themselves that possible escape hatch. They are directly asking whether states can, consistent with the Constitution, ban at least some pre-viability abortions — a question current Supreme Court precedents and lower courts have already answered with a resounding (unconscionable) “no”.
There is no reason for the Court to raise this already-answered question unless it were considering changing the answer. Indeed, the reason the Mississippi law was passed in the first place was to get the Supreme Court to reconsider its abortion precedent. This is obviously very good news for pro-lifers.
But not unalloyed good news.
The strange thing about this case is not that the Court will hear it, but that it took so long to decide to hear it, and that it decided to hear it now. Dobbs has been on the docket for months.
In a similar high-profile case about the Second Amendment, New York Rifle v. Corlett, the appeal was made in January, the Court discussed the case for the first time in March, and granted cert in late April, after discussing it three times.
In Dobbs, the appeal was made last June, almost a year ago. The Court put off discussing it throughout their entire fall term, a really unusual decision which ensured that, even if granted, the case could not be heard until Fall 2021 and thus not decided until June 2022. They finally started discussing it in January 2021… then discussed it thirteen times. This was an ominous sign to court-watchers. It’s good for a cases’s odds if it gets get relisted once or twice. But to get relisted thirteen times? That’s a case the Court is stalling on — a case the Court is probably going to quietly deny at the end of June, as it did last year in several major Second Amendment cases.
Another, more optimistic possibility I had considered was that the Court was planning to grant cert in Dobbs, but was hoping to announce it the same day as some other major headline-grabbing opinion. This would help ensure that the headline from the in-the-tank pro-abortion press wouldn’t be “JOHN ROBERTS PLANNING TO PERSONALLY MURDER A WOMAN” — or whatever CNN probably says right now.
Instead, surprisingly, the Court granted cert all of a sudden, and not at all on a big opinion day. What gives? Why now? Answer: I don’t know! But here are some wild guesses, which I’ll call Scenarios to make them sound weightier:
SCENARIO A: Dobbs is just a controversial case and the Supremes wanted to be sure they’d dotted all their i’s and crossed all the t’s before granting cert. It’s super-weird for a case to be relisted QUITE as often as Dobbs and then suddenly granted… but the Supremes DO sometimes relist a case a bunch, talk it out, and then grant. We have no idea what goes on in that conference room.
SCENARIO B: The Supremes were always going to grant cert to Dobbs, but they were debating which of the three questions to consider. Only granting the first question is a fairly big deal.
SCENARIO C: Knowing that the Court’s Left would do almost anything to protect America’s far-to-the-left-of-Europe abortion regime, Roberts and maybe Kavanaugh were trying to horse-trade with the liberal justices for, I dunno, something or other. Roberts is an operator like that. Eventually, the horse-trade fell apart — maybe because Sotomayor has more integrity than Roberts, maybe because Roberts couldn’t deliver — so Roberts allowed the grant in Dobbs.
SCENARIO D: Technically, four justices can grant a case. But this rarely happens, because it takes FIVE justices to WIN a case. Justices generally don’t generally tee up big cases only to lose them, big, at the highest court in the land.
But imagine a scenario: John Roberts and Brett Kavanaugh, who together form the court’s center, are both refusing to hear Dobbs. “It’s a direct attack on Casey,” they say, “We should go slower, build up a record of cases undermining Casey before we overturn it. It will be a huge blow to the Court’s political prestige to directly overturn Roe and Casey, even if we’re right, and the Court’s prestige is the most important thing.”
The four-justice conservative bloc (Alito/Gorsuch/Thomas/Barrett) responds, “You know Casey is bad law as well as we do. Mississippi’s law is constitutional and they have a right to enforce it. So we have no right to turn aside this case. You wouldn’t dare uphold this garbage precedent; your respect for the law is too great, and, besides, a justice who votes to uphold Roe is essentially expelled from conservative society forever.”
Roberts and Kavanaugh: “If you force our hand, we will vote to uphold Casey and Roe.”
Conservatives: “You’re bluffing. Surely even you, Chief Justice Roberts, for all your politicking, don’t hold the Constitution of the United States or your judicial oath in such deep contempt.”
After going around and around on this thirteen times, the conservatives call their bluff and roll the dice. They grant cert even though Roberts and Kav are still officially holdouts. There are four votes on the Court to overturn Casey, three votes to uphold it, and two whose legal commitments are all against Casey but whose political commitments run the other way — in which case Dobbs may lose.
I think this scenario is pretty plausible, because it seems that something close to this played out several times in 2018-2020… except the conservatives didn’t have four votes to grant cert because Barrett wasn’t on the Court yet, so we ended up with Gorsuch/Alito/Thomas filing several joint dissents from denial of cert.
SCENARIO E: Kavanaugh was in favor of granting Dobbs, but Roberts wasn’t. Kavanaugh, who adores Roberts, has spent the past several months negotiating with Roberts, perhaps trying to open up a path to a narrow decision that upholds the Mississippi law but doesn’t blow up Roe and Casey. When it became clear that Roberts wouldn’t play ball–perhaps in part because Gorsuch kept haranguing him in conference for playing politics, and Roberts more or less openly hates Gorsuch (and vice versa)–Kavanaugh reluctantly voted to grant cert without Roberts’ support.
SCENARIO F: The four conservatives decided they would not grant cert unless they could secure a fifth vote. Roberts and Kavanaugh were holding out because they didn’t like the optics of Dobbs, and they were both planning to kill this case quietly in June. However, Kavanaugh read the unflattering profile of himself in The Atlantic last week. He realized that, if he killed Dobbs, mere weeks after that article ran, it would cement his image on the Right as an unprincipled opportunist. So he opportunistically changed his vote to avoid the perception of opportunism.
SCENARIO G: Odds are pretty good that all these scenarios are wrong, and the mysterious relist saga in Dobbs happened for some other reason. The Supreme Court is deliberately opaque! That’s probably good in some ways, frustrating in others.
So what’s it all mean? The most likely outcome of this case is a substantial narrowing of the supposed right to abortion (which was improperly constitutionalized in 1973). This would give states significantly more freedom to set their own abortion policies, whether permissive or restrictive, and it may very well practically eviscerate Casey. A very possible outcome is that the Court will directly overturn Planned Parenthood v. Casey — and, thus, indirectly overturn Roe v. Wade.
But it is also quite possible that pro-lifers are going to be disappointed. After all, that’s our lot in life: we never win decisive Supreme Court abortion cases, and rarely win any Supreme Court abortion cases at all, because the Supreme Court considers abortion cases in a parallel pocket dimension where literally nothing about the law or prior precedent matters–only preserving the Court’s abortion mandate does. Look how terribly Hellerstadt v. Whole Women’s Health turned out for us, despite all the signs pointing the right directions. And then, to add insult to injury, we lost June Medical Services, too! Look what a disaster Planned Parenthood v. Casey was, when it was the decision that was supposed to repudiate Roe. Even our biggest wins, like Gonzales v. Carhart, were very, very narrow, and largely just triumphed over even worse decisions, like Stenberg v. Carhart.
The stakes are higher this time. If the abortionists win this case, despite having six thoroughly-vetted, Federalist Society judges forming the Supreme Court majority, then that is a full and final repudiation of pro-life legal strategy for the past thirty years. Not only would that be very bad news for babies… it would also be very good news for Adrian Vermueule’s “Common-Good Constitutionalism” project, which repudiates textualism in a way I find repellant and which progressives should find utterly terrifying. On the other hand, if the abortionists lose, especially in a big way, that’s a pretty big vindication of the legal strategy. And there’s good reasons for hope — but also good reasons to fear.
We still do not know how Kavanaugh and Roberts will vote in this case. (Technically, we don’t know about Alito, Gorsuch, or Barrett, either… but I think their jurisprudence is clear enough to draw a conclusion.) We have strong reason to believe that at least Roberts and very possibly Kavanaugh have been working hard to avoid this case for months. We don’t know why Dobbs was held over for so many months. There is reason for optimism. There is reason to start preparing for a 50-state abortion battle starting in June 2022, and reason to make sure red-state social safety nets are up to the challenge of helping a lot more babies being born to poor women, especially women of color. There is also reason to start preparing for a negative outcome, and — with it — the failure and collapse of the conservative-textualist legal movement.
EDIT: P.S. It is interesting to note, although I can’t find any special meaning in it, that the Court granted cert in Dobbs on the same day that it finally decided to dismiss American Medical Association v. Azar — a case it had held over for quite a long time, in a very unusual move. (I apologize for a Vox link, but Ian Milhiser’s explanation of the strange course of AMA v. Azar is clearer than any I’m familiar with.) Maaaaaaybe Dobbs and AMA were held over until now because of some kind of debate about which one the Court should take? Seems unlikely, but, then, AMA being held over in the first place seemed unlikely until it happened.