Supreme Court Abortion Decisions

Contents

  • Personal Liberty Cases
    • Meyer v. Nebraska (1923)
    • Pierce v. Society of Sisters (1925)
    • Skinner v. Oklahoma (1942)
    • Poe v. Ullman (1961)
    • Griswold v. Connecticut (1965)
    • Loving v. Virginia (1967)
    • Eisenstadt v. Baird (1972)
    • Carey v. Population Services International (1977)
    • Turner v. Safley (1987)
    • Lawrence v. Texas (2003)
    • Obergefell v. Hodges (2015)

Roe v Wade (1973)

Websites
Reconstruction of Roe v. Wade
  • Background: the philosophic question of when human life begins.
    • View Beginning of Human Life
    • Justice Blackmun writing from the majority in Roe v Wade:
      • “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” (Paragraph 91)
      • “It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until birth. ….” (Paragraph 92)
  • A Supreme Court ruling is supported by an argument based on:
    • Case information
    • The Constitution (often supplemented by commentary and analysis)
    • Supreme Court precedents (and perhaps other relevant opinions)
  • Reconstruction of Roe v Wade:
    • Case information
      • Roe claimed that a Texas statute prohibiting abortion abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
      • The statute: Anyone who procures an abortion shall be confined in the penitentiary not less than two nor more than five years.
    • The Constitution
      • Due Process Clause of the Fourteenth Amendment
        • “nor shall any state deprive any person of life, liberty, or property, without due process of law.”
    • Precedents
      • In a series of decisions, the Court recognized that a right of personal privacy exists under the Constitution which extends to:
        • marriage
          • Loving v. Virginia (1967)
        • procreation
          • Skinner v. Oklahoma (1942)
        • contraception
          • Eisenstadt v. Baird (1972)
        • family relationships
          • Prince v. Massachusetts (1944)
        • child rearing and education
          • Pierce v. Society of Sisters (1925)
      • View Personal Liberty Cases
  • Argument and Ruling
    •  The right of personal privacy, derived from the Due Process Clause of the 14th Amendment and supported by long-standing precedents, is broad enough to encompass a woman’s decision whether to terminate a pregnancy. 
    • Texas may not override the rights of the pregnant woman by adopting one theory of human life.
      • “When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” (Paragraph 91)
    • A woman’s right to terminate a pregnancy is not absolute.
    • The state has important and legitimate interests in:
      • preserving and protecting the health of a pregnant woman
      • protecting the potentiality of human life.
    • Therefore a woman’s right of personal privacy, which includes the abortion decision, must be considered against the state’s interests in regulation.
    • Each of the state’s interests grows in substantiality as the woman approaches term.
    • At certain points during pregnancy those interests become compelling:
      • The state’s interest in the health of the pregnant woman becomes compelling at the end of the first trimester because mortality in abortion may be less than mortality in normal childbirth.
      • The state’s interest in protecting the potentiality of human life becomes compelling at viability because the fetus then has the capability of meaningful life outside the mother’s womb.
  • There are two fundamentally different philosophies of the relation between precedents and the Constitution.
    • Originalsim
      • Since it’s authoritative, the original public meaning of the Constitution trumps precedents, always.
    • Common Law Approach
      • Precedents are extensions of the Constitution.
  • Application to Roe v. Wade:
    • Using the Common Law Approach, Justice Blackmun viewed the precedents he listed as establishing a right to personal privacy.
    • An Originalist might argue that there is no right to privacy since the Constitution says nothing about it. Therefore Blackmun’s “precedents” are wrongly decided.
Outline of Blackmun’s Opinion
  • I – V Preliminaries
  • VI Review of views and laws on abortion
    •  Ancient attitudes.
    • The Hippocratic Oath.
    • The common law.
      • It is undisputed that at common law, abortion performed before ‘quickening’ – the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy – was not an indictable offense
    • The English statutory law. 
    • The American law.
      • In this country, the law in effect in all but a few States until the mid-19th century was the pre-existing English common law. 
      • Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.
    • The position of the American Medical Association.
    • The position of the American Public Health Association. 
    • The position of the American Bar Association
  • VII Three traditional reasons for laws against abortion
    • To discourage illicit sexual conduct
    • Because the abortion procedure has risks for the woman.
    • Because of the State’s interest in protecting prenatal life, sometimes justified by the theory that a new human life is present from the moment of conception
  • VIII Right of Privacy
    • People have a right to personal privacy based on the Fourteenth Amendment‘s concept of personal liberty and restrictions upon state action
    • That right includes the decision to have an abortion.
    • The right is not unqualified and must be considered against important state interests in regulation.
  • IX Texas’ Personhood Arguments
    • Texas argues that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment.
      • The Constitution does not define ‘person’ in so many words.
      • In nearly all these instances, the use of the word ‘person’ in the Constitution is such that it has application only postnatally. No use indicates, with any assurance, that it has any possible prenatal application.
      • All this, together with our observation that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.
    • Texas claims that, apart from the Fourteenth Amendment, life begins at conception
      • We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
      • It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until birth.
      • In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before life birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth.
      • In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. 
  • X State’s interests in a woman’s pregnancy
    • The state has an important and legitimate interest in
      • preserving and protecting the health of the pregnant woman
      • protecting the potentiality of human life. 
    • The state’s first interest becomes compelling at the end of the first trimester because mortality in abortion may be less than mortality in normal childbirth.
    • The state’s second interest becomes compelling at viability because the fetus then has the capability of meaningful life outside the mother’s womb.
Right to Privacy
  • Harry A. Blackmun, writing for the majority (Paragraphs 76-79)
    • “The Constitution does not explicitly mention any right of privacy. In a line of decisions the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”
    • “These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage: procreation, contraception, family relationships, and child rearing and education.”
    • “This right of privacy, whether it be founded in the Fourteenth Amendment‘s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment‘s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
    • “On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.”
    • “We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”
Trimester Framework
  • The state may not regulate abortion during the first trimester 
  • The state may regulate abortion after the first trimester to protect the pregnant woman’s health
  • The state may regulate, and even ban, abortion after viability to protect the health of the fetus as long the health of mother isn’t at risk.
    • Existing independently, a newborn is the legitimate object of state protection, overriding the rights of the mother.
    • A viable fetus in effect exists independently, since it can live outside the womb.
    • Therefore, a viable fetus is the object of state protection, overriding the rights of the mother.
Reconstruction of Roe v Wade’s Argument for Viability
  • The Issue
    • Until what stage of fetal development should a woman have a legal right to abortion?
  • Obvious Answer
    • A woman should have a right to abortion until the human zygote-embryo-fetus becomes a human being.
  • Philosophic Issue of When Life Begins
    • Theories When Human Life Begins:
      • A human being comes into existence at conception.
      • A human being comes into existence after conception.
      • It is conceptually indeterminate when a human being comes into existence
        • For example, the answer to the following question is conceptually indeterminate (as long as the answer is not stipulated):
          • If 100 people voted in an election, many of whom voted for Mr. Smallweed, what’s the smallest number of votes Mr. Smallweed could have received
        • The question is unanswerable. 
        • So is the question when human life begins.
  • Roe v Wade Bypasses the Philosophical Issue
    • Harry A. Blackmun, writing for the majority
      • “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
      • “It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth.  This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. ….”
  • A Reasonable Approach
    • Setting aside the philosophical question, a reasonable approach to drawing the line on abortion is to base the decision on the legal rights and interests of the parties involved 
  • Viability
    • A fetus is viable when it is potentially able to live outside the mother’s womb, albeit with artificial aid. (Roe v Wade)
  • Roe v Wade’s Argument
    • A newborn exists independently and is therefore the legitimate object of state protection, overriding the rights of the mother.
    • A viable fetus exists independently for all intents and purposes because it is capable of “meaningful life outside the mother’s womb”
    • Therefore, a viable fetus is the object of state protection, overriding the rights of the mother.
  • Argument by Analogy
    • “For all intents and purposes” makes Roe v Wade’s argument an argument by analogy
    • An argument by analogy is an argument that something is true based on its similarity to something else known to be true.
    • Examples
      • There is no morally relevant difference between cheating and surreptitiously changing your grade on the instructor’s spreadsheet.  Changing your grade on the instructor’s spreadsheet is wrong.  Therefore cheating is wrong.
      • Benjamin Franklin’s Argument that Lightning is Electricity
        • Lightning and sparks are alike in the following respects:
          • 1. Giving light, 2. Color of the light, 3. Crooked direction, 4. Swift motion, 5. Being conducted by metals, 6. Crack or noise in exploding, 7. Subsisting in water or ice, 8. Rending bodies it passes through,  9. Destroying animals, 10. Melting metals, 11. Firing inflammable substances, 12. Sulphureous smell
        • A spark is electrical in nature
        • Therefore lightning is likewise electrical in nature
  • Analogical Statement of the Roe v Wade Argument
    • A newborn infant exists independently and is therefore the legitimate object of state protection, overriding the rights of the mother.
    • A viable fetus is just like (or the same in all relevant respects as) a newborn because the fetus is capable of “meaningful life outside the mother’s womb”
    • Therefore, a viable fetus is the object of state protection, overriding the rights of the mother.

Planned Parenthood v Casey (1992)

Websites
How Casey departs from Roe
  • Casey justifies a woman’s right to an abortion based on personal liberty rather than a right to privacy.
  • Casey replaces Roe’s Trimester Framework with its Undue Burden Framework
Personal Liberty
  • “Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” The controlling word in the case before us is “liberty.” Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, at least since Mugler v. Kansas (1887), the Clause has been understood to contain a substantive component as well, one “barring certain government actions regardless of the fairness of the procedures used to implement them” (Daniels v. Williams (1986)).” (Paragraph 44)
  • “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia.” (Paragraph 46)
  • “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child” (Eisenstadt v. Baird.) Our precedents “have respected the private realm of family life which the state cannot enter” (Prince v. Massachusetts (1944)). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” (Paragraph 55)
  • “It should be recognized, moreover, that in some critical respects the abortion decision is of the same character as the decision to use contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International, afford constitutional protection. We have no doubt as to the correctness of those decisions. They support the reasoning in Roe relating to the woman’s liberty because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it. As with abortion, reasonable people will have differences of opinion about these matters.” (Paragraph 57)
Undue Burden Framework
  • A woman has a right to abortion until viability.
    • The right derives from the due process clause of the Fourteenth Amendment, placing individual decisions about abortion, family planning, marriage, and education within “a realm of personal liberty which the government may not enter.”
      • Due Process Clause: “nor shall any state deprive any person of life, liberty, or property, without due process of law.”
  • The state may regulate, but not ban, abortion before viability as long the regulation does not place an undue burden on a woman’s right to an abortion.
    • A regulation places an undue burden on a woman’s right to abortion if its “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability”
  • The state may regulate, and even ban, abortion after viability except where the life or health of the woman is at risk.
    • Same justification as Roe v Wade
Scalia Dissent
  • “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. As the Court acknowledges, “where reasonable people disagree the government can adopt one position or the other.” The Court is correct in adding the qualification that this “assumes a state of affairs in which the choice does not intrude upon a protected liberty,” but the crucial part of that qualification is the penultimate word. A State’s choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a “liberty” in the absolute sense. Laws against bigamy, for example—which entire societies of reasonable people disagree with—intrude upon men and women’s liberty to marry and live with one another. But bigamy happens not to be a liberty specially “protected” by the Constitution. “(Paragraph 393)
  • “That is, quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected because of two simple facts:
    • (1) the Constitution says absolutely nothing about it, and 
    • (2) the longstanding traditions of American society have permitted it to be legally proscribed.
  • (Paragraph 394)
Stevens’ Concurrence and Dissent
  • It is clear that, in order to be legitimate, the State’s interest must be secular; consistent with the First Amendment the State may not promote a theological or sectarian interest.
  • In counterpoise [to the State’s interest] is the woman’s constitutional interest in liberty.
    1. One aspect of this liberty is a right to bodily integrity, a right to control one’s person.
      • This right is neutral on the question of abortion: The Constitution would be equally offended by an absolute requirement that all women undergo abortions as by an absolute prohibition on abortions. 
    2. The woman’s constitutional liberty interest also involves her freedom to decide matters of the highest privacy and the most personal nature.

Gonzales v Carhart (2007)
Intact dilation and evacuation unconstitutional.

  • The federal Partial-Birth Abortion Ban Act (2003), which prohibits a seldom used abortion procedure known as intact dilation and evacuation was ruled constitutional.
  • The Act was found not to impose an undue burden on a woman’s right to an abortion because
    • Alternative abortion procedures are available
    • There is medical uncertainty over whether the Act’s prohibition creates significant health risks.

Whole Woman’s Health v Hellerstedt (2016)

Undue Burden Standard Clarified
  • A law restricting abortion violates Casey’s undue burden standard if the medical benefits of the law do not justify the burdens the law imposes on a woman’s access to abortion.
  • For example, in 2013 Texas passed a law imposing restrictions on abortion providers:
    • Admitting-privileges Provision: Doctors performing abortions are required to have admitting privileges at a nearby hospital.
  • “We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.”
  • “In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding.”
Timeline Leading to the Ruling
  • 1973 Roe v. Wade
    • Ruled that Texas statutes criminalizing abortion violated a woman’s constitutional right of privacy, which the court found implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment.
  • 1992 Planned Parenthood v. Casey
    • Laws restricting abortion must satisfy an “undue burden” standard: a law is invalid if its “purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”
      • Undue = excessive, unwarranted
      • Substantial = considerable in importance, value, degree, amount, or extent, e.g. He won by a substantial margin, They made substantial improvements
  • 2013 Texas passes a law imposing restrictions on abortion providers:
    • Surgical-center provision: All clinics in the state were required to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing.
    • Admitting-privileges provision: Doctors performing abortions were required to have admitting privileges at a nearby hospital.
  • 2014 A Federal District Court strikes down the provisions, ruling that they impose an undue burden on women seeking abortions.
  • 2015 Fifth Court of Appeals reverses the District Court’s ruling
    • The Court of Appeals ruled that the plaintiffs had failed to show that either of the provisions “imposes an undue burden on a large fraction of women.”
    • The Court of Appeals took the Legislature’s word on the medical benefits of the provisions.
    • Breyer: The Fifth Court of Appeals implied “that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden.”
  • 2016 In Whole Woman’s Health v. Hellerstedt, the Supreme Court ruled that the provisions were unconstitutional.
    • Decision was 5-3
    • Justice Stephen G. Breyer wrote the majority opinion
The Ruling
  • “We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”
Breyer’s Argument
  • There are no real benefits of the provisions for the health of the mother or the fetus.
  • But the provisions impose a burden on a woman’s access to abortion.
  • Therefore, the benefits of the provisions do not justify the burdens.
  • A law restricting abortion violates Casey’s undue burden standard if the medical benefits of the law do not justify the burdens the law imposes on a woman’s access to abortion.
    • Breyer’s clarification / interpretation of undue burden.
  • Therefore, the provisions violate Casey’s undue burden standard.
  • Therefore, per Casey, the provisions are unconstitutional.

The courts should not take the Legislature’s word for the benefits of the provisions, as the Fifth Circuit did, but should consider the evidence.

Admitting-privileges Provision
  • No Real Benefits
    • “We have found nothing in Texas’ record evidence that shows that, compared to prior law (which required a “working arrangement” with a doctor with admitting privileges), the new law advanced Texas’ legitimate interest in protecting women’s health.”
    • “We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”
  • Burdens Imposed
    • “The District Court found, as of the time the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20.”
    • “In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding.”
Surgical-center Provision
  • No Real Benefits
    • “Abortions taking place in an abortion facility are safe — indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements.
    • “Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion”
  • Burdens Imposed
    • “The record provides adequate evidentiary support for the District Court’s conclusion that the surgical-center requirement places a substantial obstacle in the path of women seeking an abortion. The parties stipulated that the requirement would further reduce the number of abortion facilities available to seven or eight facilities, located in Houston, Austin, San Antonio, and Dallas/Fort Worth.”
Alito Dissent, Joined by Roberts and Thomas
  • The holding is contrary to the bedrock rule that a party cannot relitigate a claim simply because the party has obtained new and better evidence.
  • While there can be no doubt that H.B. 2 caused some clinics to cease operation, some clinics have or may have closed for at least four reasons other than the two H.B. 2 requirements at issue here
    • H.B. 2’s restriction on medication abortion
    • Withdrawal of Texas family planning funds
    • The nationwide decline in abortion demand
    • Physician retirement (or other localized factors).
  • Note: The District Court found that 20 of 40 abortion providers closed on or shortly before the effective date of the legislation.
Thomas Dissent
  • Clarence Thomas
    • Contrary to the majority’s statements, Casey did not balance the benefits and burdens of Pennsylvania’s spousal and parental notification provisions, either. Pennsylvania’s spousal notification requirement, the plurality said, imposed an undue burden because findings established that the requirement would “likely . . . prevent a significant number of women from obtaining an abortion”—not because these burdens outweighed its benefits.
  • Criticism of Thomas
    • A major function of appellate and supreme courts is to “clarify and expound the law” (Britannica)
      • For example: Has a person signed a legal document if (a) his hand was guided by another, (b) he signed in the wrong place, or (c) he used a pseudonym?
    • Thomas argued that Casey did not balance the benefits and burdens of Pennsylvania’s law in determining whether there was an undue burden.
    • But Thomas’s point is irrelevant because Breyer was clarifying the meaning of undue burden (or substantial obstacle), not applying a rule explicitly stated in Casey.
The Facts Win Out on Abortion, Linda Greenhouse NYT
  • Judges are extremely reluctant to accuse legislatures of acting in bad faith, and Justice Breyer didn’t have to do that. He simply had to show, carefully and methodically, the “virtual absence of any health benefit” from requiring doctors who provide abortions to obtain admitting privileges at local hospitals or requiring abortion clinics to retrofit themselves as mini-hospitals at huge cost.
  • The logic of the opinion is so clear as to seem self-evident. The Casey decision established the “undue burden” standard for judging abortion laws, and the word “undue” itself implies a comparison: undue as compared to what? The answer: An undue burden is one that outweighs a benefit.
  • But the almost laughably conservative United States Court of Appeals for the Fifth Circuit didn’t understand it that way in the decision that the Supreme Court overturned Monday. That court rebuked the district court judge, Lee Yeakel of Austin, Tex., an appointee of President George W. Bush, for having the nerve to insist on evidence for the state’s health-related claims. “In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes,” Judge Jennifer Walker Elrod wrote for the court. In an earlier phase of the case, another Fifth Circuit judge, Edith Jones, declared that the court would defer to the Legislature even if the law was based on “rational speculation unsupported by evidence or empirical data.”

June Medical Services v Russo (2020)
Case just like Whole Woman’s Health

  • Breyer writing for the majority:
    • “This case is similar to, nearly identical with, Whole Woman’s Health. And the law must consequently reach a similar conclusion. Act 620 is unconstitutional. The Court of Appeals’ judgment is erroneous. It is Reversed.”

Dobbs v. Jackson Women’s Health Organization

Background
  • The Constitution says nothing about how it should be interpreted or how justices should decide cases.

Dobbs v. Roe
  • For the Originalist justices in Dobbs v. Jackson the key question was:
    • Does the original public meaning of the Constitution state or imply a right to abortion?
  • The justices found no such right and so the Court held that:
    • “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”
  • For the Living Constitutionalist justices in Roe v. Wade the key question was:
    • Should the Constitution be extended, by precedent, to include a right to abortion, protecting the decision to terminate a pregnancy against the tyranny of the majority?  Or should the matter be left to state and federal legislatures?
  • The justices found that a right to abortion was a natural extension of earlier established constitutional rights such as:
    • the right to marry a person of a different race
    • the right to marry while in prison
    • the right to obtain contraceptives
    • the right of same-sex couples to engage in private, consensual sexual.
  • Since abortion ends the life of a human fetus, the justices had to weigh a woman’s right to abortion against the state’s right to protect potential human life. They drew the line at viability.
Technical Overview of Dobbs
  • Dobbs v. Jackson Women’s Health Organization
  • Decided June 2022
  • Justice Alito delivered the opinion of the Court, joined by Thomas, Gorsuch, Kavanaugh, and Barrett.
  • The Court held that:
    • The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. 
  • Thomas and Kavanaugh wrote concurrences.
  • Roberts wrote an opinion concurring in the judgment.
  • Kagan, Sotomayor, and Breyer wrote a dissent.
Alitio’s argument that there is no constitutional right to abortion
  • A constitutional right to abortion exists only if at least one of the following conditions is satisfied.
    1. The Constitution explicitly states the right to abortion;
    2. The right to abortion can be inferred from certain constitutional provisions, in particular, the Due Process Clause of the Fourteenth Amendment;
      • “nor shall any state deprive any person of life, liberty, or property, without due process of law.”
    3. The right to abortion is included in a broader constitutional right, e.g. a right to privacy.
  • None of these conditions is satisfied.
  • Therefore, there is no constitutional right to abortion
  • Condition 1: The Constitution does not explicitly state a right to abortion
    • Obvious
  • Condition 2: The Due Process Clause of the Fourteenth Amendment does not guarantee a right to abortion.
    • The Due Process Clause guarantees a right not mentioned in the Constitution only if it is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
    • A right to abortion is not deeply rooted in the Nation’s history and tradition.
    • Therefore, the Due Process Clause of the Fourteenth Amendment does not guarantee a right to abortion.
  • Condition 3: The right to abortion is not an integral part of a broader entrenched right.
    • Roe termed this a right to privacy.  Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy.” 
    • To support the existence of a broader right, Casey cited cases involving
      • the right to marry a person of a different race
      • the right to marry while in prison
      • the right to obtain contraceptives
      • the right to reside with relatives
      • the right to make decisions about the education of one’s children
      • the right not to be sterilized without consent
      • the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures
      • right to engage in private, consensual sexual
      • right to marry a person of the same sex
    • Alito’s first objection
      • This attempt to justify abortion through appeals to a broader right to autonomy proves too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.
    • Alito’s second objection
      • Abortion is materially different from the rights on Casey’s list. Abortion destroys a potential human life.  None of the other rights involve the critical moral question posed by abortion.
Liberal Justices’ Dissent
  • For Alito, recognizing an unenumerated right requires that it pass the Glucksberg Test:
    • That the right be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
  • The liberal justices rejected the Glucksberg Test:
    • Liberals first objection:
      • Alito’s argument that the Due Process Clause does not guarantee a right to abortion based on the Glucksberg Test also applies to:
        • The right to obtain contraception
          • Recognized by Griswold v. Connecticut (1965)
        • The right to marry a person of a different race
          • Recognized by Loving v. Virginia (1967)
        • The right of same sex couples to have private sexual relations
          • Recognized by Lawrence v. Texas (2003)
      • But people do and should have these rights.
      • Therefore, the Glucksberg Test is wrong and Alito’s argument fails.
    • Liberals second objection, from the Dissent:
      • “If … “rights were defined by who exercised them in the past, then received practices could serve as their own continued justification”—even when they conflict with “liberty” and “equality” as later and more broadly understood. The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply.”
  • The liberal view on recognizing unenumerated rights, from their Dissent:
    • “The Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.
    • Nowhere has that approach been more prevalent than in construing the majestic but open-ended words of the Fourteenth Amendment—the guarantees of “liberty” and “equality” for all.”
  • For liberal justices, the question of recognizing a new, unenumerated right boils down to this:
    • Is the question a matter for the majority of people to decide?
    • Is the question a matter for the individual to decide, protected from the majority?
  • The Court had decided in the past that obtaining contraception and marrying a person of a different race were questions for individuals to decide.
  • Roe v. Wade and Casey likewise decided that terminating a pregnancy was for the woman to decide.  But they recognized that the state had a legitimate interest in protecting the fetus.

Dobbs Aftermath

  • State Abortion Bans
    • Tracking the States Where Abortion Is Now Banned NYT
    • Abortion is now banned in these states. WaPo
    • Indiana passes near-total abortion ban, the first state to do so post-Roe WaPo
  • Public Opinion
    • Majority of Public Disapproves of Supreme Court’s Decision To Overturn Roe v. Wade
    • Support for Legalized Abortion Grows Since Dobbs Ruling, WSJ Poll Shows WSJ
    • What Ohio abortion law says about a 10-year-old rape victim  Aaron Blake WaPo
  • State Referenda on the Right to Abortion (Direct Democracy in Action)
    • First Kansas, Next Michigan and Beyond as Abortion Ballot Measures Spread NYT
    • Kansans resoundingly reject amendment aimed at restricting abortion rights WaPo
    • Most Texans don’t want to make medication abortion a felony, poll finds  DMN
  • DOJ and HHS
    • Justice Dept. announces task force to fight overreach on abortion bans  WaPo
    • Justice Dept. sues Idaho over near-total abortion ban coming Aug. 25  WaPo
    • The administration clarifies emergency room laws around abortion WaPo
      • cms.gov/files/document/qso-22-22-hospitals.pdf
        • If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.
    • Judge Halts Part of Idaho’s Abortion Ban, Saying It Violates Health Law  NYT
  • Legal Questions
    • Can states ban mail-order medication used to terminate pregnancies?  
    • Can states ban residents from traveling out-of-state to get an abortion?
    • Major legal fights loom over abortion pills, travel out of state  WaPo
  • Other Rights in Jeopardy?
    • Right to same-sex marriage
    • Right to to contraception
    • Which rights are next on the Supreme Court’s chopping block? Millhiser Vox
      • There’s also an open question about whether other rights, such as the right to same-sex marriage or the right to contraception, are in danger. Many of the Court’s decisions protecting a right to sexual, romantic, or bodily autonomy rely on similar reasoning to Roe. And Alito’s reasoning in the Dobbs opinion closely tracks reasoning he once used to argue that same-sex marriage is not rooted in American legal history and tradition. In other words, the logic Alito uses in Dobbs could be used to target other rights.
    • Why Overturning Roe Will Unleash a Legal Storm for the Supreme Court  Litman NYT
  • 2022 Midterms
    • A stunning GOP losing streak since Dobbs could remake the midterm landscape  Jennifer Rubin WaPo
    • Democrats emboldened after Kansas abortion vote, as they eye fall campaign WaPo
    • After Roe, Women Surged in Signing Up to Vote in Some States NYT Upshot
  • Effect of Bans on Reproductive Health Care
    • Pregnancy Complications
      • Miscarriage (spontaneous abortion), ectopic pregnancy, fatal birth defects, preeclampsia, infection, PROM (premature rupture of membranes)
    • Physicians face confusion and fear in post-Roe world WaPo
      • Physician Caitlin Gustafson explained that many complications related to pregnancy … involve a gradual descent into a life-threatening state. It’s unclear how sick a patient has to be before the state’s exception allowing abortion to save the life of the mother kicks in and the patient is eligible to have the pregnancy terminated.
    • Women Face Risks as Doctors Struggle With Medical Exceptions on Abortion  NYT
      •  A woman arrived in crisis: It was only 17 weeks into her pregnancy and her water had broken.
      • The fetus would not be viable outside the womb, and without the protection of the amniotic sac, the woman was vulnerable to an infection that could threaten her life. In states where abortion is generally legal, there would have been an option to end her pregnancy.
      • Texas has a ban on most abortions, providing an exception when a woman’s life is threatened. But the patient’s life in this case was not in immediate danger — yet. The hospital sent her home to wait for signs of infection or labor, Dr. Horton said.
    • They Had Miscarriages, and New Abortion Laws Obstructed Treatment NYT
      • A study from two Dallas hospitals reported on 28 patients whose water broke or who had other serious complications before 22 weeks’ gestation, and who, because of Texas laws, didn’t receive medical intervention until there was an “immediate threat” to their lives or fetal cardiac activity stopped.
    • The Coming Rise of Abortion as a Crime  Atlantic
    • What Is Ectopic Pregnancy? NYT
      • An ectopic pregnancy occurs when a fertilized egg implants in the wrong place in a woman’s body. So instead of attaching to the lining of the uterus, where it can survive, it grows elsewhere, usually a fallopian tube.
      • Ectopic pregnancy is rare.
      • Ectopic pregnancies are never viable, said Dr. Beverly Gray
    • The Dobbs Decision Has Unleashed Legal Chaos for Doctors and Patients  NYR
    • The most common abortion procedures and when they occur  WaPo
    • A challenge for antiabortion states: Doctors reluctant to work there  WaPo
    • ‘They’re Just Going to Let Me Die?’ One Woman’s Abortion Odyssey  NYT
    • Because of Texas abortion law, her wanted pregnancy became a medical nightmare NPR
      • At 18 weeks, the watery, protective cushion of amniotic fluid was gone. There was still a fetal heartbeat, but it could stop at any moment. Among other risks, both the fetus and Elizabeth were now highly vulnerable to a uterine infection called chorioamnionitis.
    • The math is clear: Forced-birth laws will kill more women  Jennifer Rubin WaPo
    • Confusion post-Roe spurs delays, denials for some lifesaving pregnancy care WaPo
      • The methods of managing a miscarriage are the same as for abortion, using a combination of drugs — mifepristone and misoprostol — or a brief surgery known as dilation and curettage, or D&C, to dilate the cervix and scrape tissue from the uterus. Left untreated, some miscarriages resolve naturally; others lead to complications such as infection or profuse bleeding.
    • Abortion Pills Take the Spotlight as States Impose Abortion Bans  NYT
    • Medication Abortions Are Increasing: What They Are and Where Women Get Them  NYT Upshot
    • Abortion Pills Now Account for More Than Half of U.S. Abortions NYT
    • Medical Impact of Roe Reversal Goes Well Beyond Abortion Clinics, Doctors Say  NYT

Personal Liberty Cases
Laws and Rights

Meyer v. Nebraska (1923)
  • Law prohibiting teaching grade school children any language other than English.
  • Right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
Pierce v. Society of Sisters (1925)
Skinner v. Oklahoma (1942)
Poe v. Ullman (1961)
  • In his dissent Justice Harlan said that the “liberty” of the Due Process Clause
    • “is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”
  • Oyez Poe v. Ullman
  • LII Poe v. Ullman
Griswold v. Connecticut (1965)
  • Law prohibiting contraception for married couples
  • Right to privacy
  • Stewart dissent
    • What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy ‘created by several fundamental constitutional guarantees.’ With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.
  • Black dissent
    • Connecticut’s law as applied here is not forbidden by any provision of the Federal Constitution as that Constitution was written
    • While I completely subscribe to the holding of Marbury v. Madison, and subsequent cases, that our Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of ‘civilized standards of conduct.’
Loving v. Virginia (1967)
Eisenstadt v. Baird (1972)
  • Law prohibiting giving contraceptives to an unmarried person
  • Right to decide whether to bear or beget a child, married or single.
  • Burger dissent
    • The state has a valid interest in seeking to protect health by regulating contraceptives,
Moore v. City of East Cleveland (1977)
Carey v. Population Services International (1977)
Turner v. Safley (1987)
Lawrence v. Texas (2003)
  • Statute prohibiting deviate sexual intercourse between members of the same sex
  • Right of same sex couples to have private sexual relations.
  • Thomas dissent
    • There’s no right to privacy in the Bill of Rights nor any other part of the Constitution.
  • Scalia dissent
    • The statute furthers a reasonable and legitimate state interest: reinforcing the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable.”  Like bigamy, adult incest, bestiality, and obscenity.
Obergefell v. Hodges (2015)
  • Laws not licensing or recognizing same-sex marriage.
  • Right of same-sex couples to marry
  • Roberts dissent
    • Our precedents have required that implied fundamental rights be “objectively, deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg.
  • Scalia dissent:
    • When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.
  • Thomas dissent:
    • By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority.
  • Alito dissent:
    • The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right.
    • The Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “ ‘deeply rooted in this Nation’s history and tradition.’ ” Washington v. Glucksberg, (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights. 

A Law to Evade Judicial Review
Texas SB 8

  • Texas SB 8, which effectively bans all abortions after six weeks of pregnancy, violates a woman’s constitutional right to abortion, since it imposes an “undue burden” on women seeking abortions in Texas.
  • If Texas SB 8 had simply made abortion a crime, abortion clinics in Texas could have gone to federal court to get a temporary injunction barring the state from enforcing the law until a ruling is made.
  • But Texas SB 8 prohibits government officials from enforcing the law, instead allowing only private citizens to sue abortion providers.
  • An injunction is an order of a court requiring a party to do or not to do a specified act. So an injunction against SB 8 would have to prohibit government officials from enforcing the law, in particular Attorney General Ken Paxton. But, per the Supreme Court, there is no “enforcement authority the attorney general possesses in connection with S. B. 8 that a federal court might enjoin him from exercising.”
  • The Supreme Court refused to grant a temporary injunction against SB 8 on the day it went into effect, September 1, 2021.
    • “The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example, federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.  In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application.”
  • Justices Roberts, Breyer, Kagan, and Sotomayor each delivered their own dissents.
  • From Chief Justice Roberts’ dissent:
    • The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings.
    • The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.
  • From Justice Sotomayor’s dissent:
    • The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials.
    • New permutations of S. B. 8 are coming. … What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority through crushing “private” litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials?  Perhaps nothing at all, says this Court.
  • Newsom announces Texas-style bill that would let residents sue gun makers Politico
    • State Sen. Bob Hertzberg (D-Van Nuys) on Friday unveiled new legislation that would allow Californians to sue makers and sellers of assault weapons, .50 BMG rifles, ghost guns or ghost gun kits. Officials didn’t go into the details of the bill, but made it clear that it’s based on a Texas law allowing people to sue abortion providers.
  • The Texas abortion ban created a ‘vigilante’ loophole. Both parties are rushing to take advantage. WaPo
    • Since the Texas law took effect in September, at least 31 copycat laws have been introduced across the country, according to a Washington Post review of legislative and other public records. The laws focus on a wide variety of polarizing issues — including book banning, gun control and transgender athletics.
    • A majority of the copycat bills reviewed by The Post are focused on conservative causes, including at least nine abortion bills that closely mimic the Texas law.
    • More than a dozen are education bills, with Republicans taking sides on disputes over school curriculum, library books, mask mandates and gender-neutral bathrooms — all topics of heated battles at public school board meetings in recent years.
  • Texas’s strict new abortion law has eluded multiple court challenges. Abortion rights advocates think they have a new path to get it blocked.WaPo
    • “The Lilith Fund and the Texas Equal Access Fund have admitted to paying for abortions in violation of the Texas Heartbeat Act,” said Tom Brejcha, president and chief counsel of the Thomas More Society, an antiabortion legal group, referring to abortions the groups helped to facilitate over a two-day period in October when a judge temporarily blocked the ban.
    • After a month of fielding threats from these antiabortion groups on social media, the abortion funds argued in several lawsuits filed last week that the groups targeting them have identified themselves as the ones enforcing the law — and, therefore, the ones for abortion rights advocates to hold to account in federal court.
    • In these cases, the Lilith Fund and the North Texas Equal Access Fund are suing the America First Legal Foundation and the Thomas More Society, two antiabortion legal groups, in federal court, as well as two private citizens in Texas state court. 
    • The Lilith Fund and the North Texas Equal Access Fund are filing these lawsuits to “protect themselves, their staff, their volunteers and their donors from the coordinated efforts by people and organizations across the country that have made it clear they intend to enforce S.B. 8 by filing lawsuits against abortion funds,” said Elizabeth Myers, one of the lawyers representing the abortion rights groups.
    • Some legal scholars think the new lawsuits by the abortion funds could pose a threat to S.B. 8 now that various people and organizations have made their intentions clear, said Steve Vladeck, a professor at the University of Texas School of Law, who specializes in the federal courts and has closely followed the Texas abortion ban.
    • “This case is not hypothetical because these particular defendants are in the process of pursuing various kinds of enforcement actions,” said Vladeck. After six months of trying to block the Texas law, abortion funds are probably thinking: “Now we finally have someone. Get out of our way, let’s go,” Vladeck said.
    • Even if a federal court judge does block the law, Vladeck said, the injunction will probably only apply to the particular defendants listed in the case. While those specific people and organizations would no longer be able to sue under S.B. 8, any other private citizen could still file a lawsuit.
    • At that point, Vladeck said, Texas abortion providers will have to decide whether they are comfortable resuming abortion care after six weeks of pregnancy. Abortion clinics and funds could still face other lawsuits, Vladeck said, but a favorable ruling in this case would make them more confident that they would win.
    • With these cases, Vladeck added, abortion rights groups are “building the defensive position.”
    • “They’re going to court to obtain a judgment that won’t be completely effective, but will make it easier to defend the lawsuits they will still face.”

Texas SB 8

The Law
  • Texas SB 8 bars abortions once a fetal heartbeat can be detected, which typically occurs around the sixth week of pregnancy. Many women don’t realize they’re pregnant then.
  • The law makes no exceptions for rape and incest, though it permits abortions for health reasons, allowing a termination only if the pregnancy could endanger the mother’s life or lead to “substantial and irreversible impairment of a major bodily function.”
  • The law bars state officials from enforcing it, instead allowing anyone, other than an officer or employee of the state or local government, to sue someone who
    • performs or induces an abortion
    • knowingly engages in conduct that aids or abets the performance or inducement of an abortion
      • including paying for or reimbursing the costs of an abortion through insurance or otherwise
    • intends to engage in either of the above.
  • The patient may not be sued, but doctors, staff members at clinics, counselors, and people who help pay for the procedure are potential defendants. Plaintiffs, who don’t need to have a connection to the abortion or prove they’ve been harmed by it, are entitled to “not less than $10,000 for each abortion” if they win. Prevailing defendants are not entitled to legal fees.
  • The law is difficult to challenge in the courts, since state officials are barred from enforcing it.
    • Usually a lawsuit to block a state law as unconstitutional names state officials as defendants. 
    • The law’s defenders say that only Texas courts can rule on the matter and only in the context of suits against abortion providers for violating the law.
Supreme Court
  • Supreme Court Won’t Block Texas Abortion LawNYT
    • The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s three liberal members in dissent.
    • The majority opinion was unsigned and consisted of a single long paragraph. It said the abortion providers who had challenged the law in an emergency application to the court had not made their case in the face of “complex and novel” procedural questions. The majority stressed that it was not ruling on the constitutionality of the Texas law and did not mean to limit “procedurally proper challenges” to it.
  • Whole Woman’s Health et al v. Austin Reeve Jackson, Judge, et al: On Application For Injunctive Reliefsupremecourt.gov/opinions/20pdf/21a24_8759.pdf
    • Applicants for an injunction have not met their burden to prevail:
      • To prevail in an application for a stay or an injunction, an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits.”
      • Federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly.
      • Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.
      • Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law.
  • Chief Justice Roberts, with whom Justice Breyer and Justice Kagan join, dissenting.
    • The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.
    • The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.
    • We are at this point asked to resolve these novel questions—at least preliminarily—in the first instance, in the course of two days, without the benefit of consideration by the District Court or Court of Appeals. We are also asked to do so without ordinary merits briefing and without oral argument.
  • Justice Kagan, with whom Justice Breyer and Justice Sotomayor join, dissenting:
    • Without full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions, prohibiting abortions for the vast majority of women in Texas who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.
    • Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow docket decision making—which every day becomes more unreasoned, inconsistent, and impossible to defend. I respectfully dissent.
Department of Justice
  • Justice Department sues Texas to block six-week abortion banWaPo
    • The suit filed by the Justice Department in federal court in Austin asks a judge to “protect the rights that Texas has violated” by declaring the abortion law unconstitutional and issuing an injunction blocking its enforcement. At a news conference, Attorney General Merrick Garland said the ban “is clearly unconstitutional under long-standing Supreme Court precedent.”
    • “This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear,” said Garland, warning that what he called the “bounty hunter” element of the law may become “a model for action in other areas by other states and with respect to other constitutional rights or judicial precedents.” The U.S. government, Garland added, has a responsibility “to ensure that no state can deprive individuals of their constitutional rights.”
  • Justice Dept. Asks Judge to Block Texas’ Restrictive Abortion LawNYT
    • “It is settled constitutional law that ‘a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,’” the department said in the lawsuit. “But Texas has done just that.”
    • As such, the department asked Judge Robert L. Pitman of the Western District of Texas to issue a temporary restraining order or a preliminary injunction that would prevent enforcement of the law.
    • “This relief is necessary to protect the constitutional rights of women in Texas and the sovereign interest of the United States,” the Justice Department said in its brief.
    • Emergency Motion
Alan Braid
  • Alan Braid is known for defying the Texas abortion law. He’s spent years challenging antiabortion laws.WaPo
    • Earlier this month, Alan Braid violated his state’s ban on abortions after six weeks of pregnancy. Then In a Sept. 18 op-ed in The Washington Post, Braid explained that he’d performed the procedure on a woman who was in her first trimester but beyond the state’s new limit, because she had a “fundamental right to receive this care.”
    • In his op-ed, Braid admitted to providing an abortion on Sept. 6 to a woman who was past the legal limit, essentially baiting antiabortion advocates to file a lawsuit against him. Sure enough, when courts opened on Monday, two people — a disbarred lawyer serving a federal sentence in Arkansas and another man in Illinois — sued him for the violation.
The staggering implications of the Supreme Court’s Texas anti-abortion ruling, Ian Millhiser  Vox
  • Other states can ban abortions outright using copy-cat legislation.
    • But if Texas can avoid a court order blocking its anti-abortion law by delegating enforcement of the law to private bounty hunters, so can any other state. Indeed, nothing in the Court’s order prevents another state from passing a law banning all abortions — provided that the law is enforced using SB 8-style private lawsuits.
  • Neither the state nor the attorney general can be sued
    • Under a doctrine known as “sovereign immunity,” private parties typically cannot sue states directly. In Ex Parte Young (1908), however, the Supreme Court held that a private party who wishes to block a state law may sue the state officer charged with enforcing that law. 
    • But SB 8 states that it “shall be enforced exclusively through … private civil actions.” State officers and employees are explicitly forbidden from enforcing the law. So, it’s not at all clear who the appropriate defendant is in a federal lawsuit attempting to block SB 8.
  • Anyone can sue a person whom they suspect of performing, aiding or abetting an abortion
    • But here’s the rub: Under SB 8, “any person” except for a state employee may bring a lawsuit against an abortion provider. That lawsuit may be filed in any number of different Texas state courts, including a trial court in the same county where the plaintiff resides (assuming the plaintiff lives in Texas).
    • That means anyone who is even suspected of performing an abortion after the sixth week of pregnancy can be hauled into court at any time, in nearly any venue in the state, and potentially by hundreds or even thousands of different litigants. The abortion provider will then have to hire a lawyer and defend itself against all of those lawsuits. And if it loses just one, it will have to pay a bounty of “not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter.”
    • It’s worth emphasizing the words “not less than.” A judge with particularly strong anti-abortion views might award a bounty of $20,000, or $50,000, or $18 million.
  • What about suing judges?
    • There is one potential flaw in Texas’s scheme to prevent anyone from challenging SB 8 before it took effect. The law is enforced by private parties bringing lawsuits wherein a Texas state judge may award bounties against abortion providers. But state judges are state officers charged with enforcing SB 8, which means they could conceivably be sued.
    • And that’s exactly what the plaintiffs in Whole Woman’s Health did, adding a Texas judge and a Texas court clerk to the list of defendants in their lawsuit.
    • One potential problem with this approach, however, is that suits against judges are typically disfavored — though they are not absolutely forbidden. As the five most conservative justices correctly note in their Whole Woman’s Health order, it is not entirely clear whether “under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.”
    • Indeed, that is the crux of the majority’s reasoning in Whole Woman’s Health. It is unclear whether private suits against Texas judges are allowed, so it’s not appropriate for the Supreme Court to order those judges not to enforce SB 8.
    • But here’s the thing: Yes, it is true that current Supreme Court precedent is unclear about when state court judges may be sued in federal court. But do you know who is allowed to issue binding decisions interpreting previous Supreme Court decisions? The Supreme Court of the United States. That’s the whole point of having a single Court at the apex of the nation’s judicial hierarchy: It can resolve novel legal questions that aren’t settled by existing court decisions.
    • Moreover, while there is some uncertainty regarding when state judges can be sued, the Court’s decisions do suggest that a lawsuit should be permitted under the unusual facts presented by Whole Woman’s Health. In Mitchum v. Foster (1972), the Court explained that one of the federal judiciary’s roles is to “protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’” Federal court injunctions binding state officers are especially justified when deemed “essential to prevent great, immediate, and irreparable loss of a person’s constitutional rights.”
    • One possible reason why the Court might not want to resolve this question right away is that Whole Woman’s Health arrived on its shadow docket. The question of when private plaintiffs may sue state court judges in federal court is a difficult one that the Court should probably think about for more than three days.
    • Had the Court wanted to take more time to weigh the question of when state court judges may be sued in federal court, the justices could have given themselves that time. As Roberts writes in his dissenting opinion, the Court should have issued a temporary order that will “preclude enforcement of S. B. 8” while this case makes its way through the ordinary litigation process rather than being rushed through in a shadow docket order.
    • That way, the Court would avoid making a sweeping pronouncement about abortion rights — and about whether states can use clever procedural tricks to dodge litigation — without full briefing, oral argument, or more than a few days to consider the case.
  • The Shadow Docket
    • The right to an abortion was killed in a one-paragraph order in a case that arose on the Supreme Court’s “shadow docket,” a mix of emergency motions and other decisions that receive only cursory briefing and no oral argument. 
    • This is not the first time the Roberts court has used the shadow docket to make important decisions.
    • During the pandemic, the Court handed down a pair of shadow docket decisions that completely revolutionized its approach to “religious liberty” cases, severely limiting a seminal Supreme Court precedent in the process.
    • Similarly, the Supreme Court on August 24 ignored decades of prior decisions warning that judges should be very cautious about interfering with American foreign policy, effectively ordering the Biden administration to open diplomatic negotiations with Mexico to reinstate a Trump-era immigration policy that the new administration tried to end. This decision was also handed down on the shadow docket.
  • Hypothetical Cases
    • There’s also a profound practical reason why the Supreme Court should not bless laws like SB 8 — and why it almost certainly would not bless a similar law that applied to a topic other than abortion.
    • Imagine, for example, that New York passed a law permitting “any person” to sue gun owners and collect a $10,000 bounty from those gun owners. Or, for that matter, imagine if a state allowed anyone to file a lawsuit against Justice Samuel Alito, seeking a $10,000 bounty every time Alito used the word “the.”
    • Does anyone think this Supreme Court would rule that a law authorizing thousands of harassment suits against gun owners is compatible with the Second Amendment? Or that it would force those gun owners to hire lawyers and litigate a seemingly endless stream of lawsuits to avoid paying a bounty?
    • Similarly, does anyone think this Court would allow one of its own members to be bombarded with lawsuits whose sole purpose is to hound him and impoverish him with legal fees?
    • With their decision in Whole Woman’s Health, the justices have unleashed a monster. If taken seriously, that decision would allow any state to subject any person or institution to an overwhelming wave of lawsuits that they cannot possibly defend against. SB 8 is a direct attack on the rule of law and the principle that everyone should have their day in court before they are punished by the state.
    • It’s an attack on the 14th Amendment, which provides that no state may deprive any person of life, liberty, or property, without due process of law.”
Countersuing using Section 1983 of Title 42
  • One tactic to stop abortion bounty hunters from demolishing women’s constitutional rights Jennifer Rubin WaPo
    • Anyone sued under the bounty-hunting statute can raise the defense that the law is unconstitutional. Section 1983 of Title 42 in the U.S. Code provides an offensive weapon to discourage such suits and ensure that bounty hunters pay a price for attempting to interfere with women’s constitutional rights.
    • Section 1983 of Title 42 in the U.S. Code provides:
      • “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” When Texas’s law forces every abortion provider in the state to shut down, surely there is a deprivation of constitutional rights. They have effectively “chilled” women’s constitutional rights.
    • When Texas’s law forces every abortion provider in the state to shut down, surely there is a deprivation of constitutional rights. They have effectively “chilled” women’s constitutional rights.
    • What about “under color of any statute”? Does that not limit Section 1983 to so-called state actors? In fact, there is a well-developed body of law that says private individuals acting in concert with state actors can be sued. The “under color” phrase does not require that the accused be a public official. That person only needs to be engaged in “in joint activity with the state or its agents.”
Politics
  • Texas Republicans Got What They Wanted. They Might Regret It, David Frum Atlantic
    • It’s possible that Texas Republicans have miscalculated.
    • The abortion debate is often analogized to the debate over alcohol prohibition in the late 19th and early 20th centuries. For almost 70 years, from the 1850s to the 1920s, Americans battled passionately but inconclusively over how to regulate booze. The debate ended only after the prohibitionists won their seemingly decisive victory: the Eighteenth Amendment in 1919 followed by the Volstead Act. For a dozen years, metropolitan America lived under rules imposed by non-metropolitan America. Then the whole experiment utterly collapsed. Alcohol prohibition failed so dismally, both in practice and in politics, that even the prohibitionists had to surrender. Only then could the United States move to a stable equilibrium of national legality bounded by locally acceptable regulations.

Fourteenth Amendment Clauses

Unenumerated Rights

  • The Ninth Amendment implies there are rights not enumerated in the Constitution.
    • Ninth Amendment
      • “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
  • From Justice Goldberg concurrence in Griswold v Connecticut:
    • “The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment. . . . Nor do I mean to state that the Ninth Amendment constitutes an independent source of right protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.”
  • Some unenumerated rights established by the Court
    • Right to vote
    • Right to travel
    • Right of married and unmarried couples to use contraception
    • Right of interracial couples to marry
    • Right of parents to direct the upbringing and education of their children
    • Right of parents to send their children to private school
    • Right to same-sex sexual intimacy
    • Right against a criminal penalty of sterilization
    • Right of cohabitation by relatives who are not a conventional nuclear family.
  • Some Sources of Unenumerated Rights
    • Fourteenth Amendment
      • Equal Protection Clause:
        • “nor deny to any person within its jurisdiction the equal protection of the laws.”
      • Due Process Clause:
        • “nor shall any state deprive any person of life, liberty, or property, without due process of law.”
    • Interpolating and extrapolating from the Enumerated Rights
  • The problem for the Court is to decide whether to recognize a “new” unenumerated right.

Due Process

  • Fifth Amendment
    • Due Process Clause:
      • “No person shall be be “deprived of life, liberty, or property, without due process of law.”
  • Fourteenth Amendment
    • Due Process Clause:
      • “nor shall any state deprive any person of life, liberty, or property, without due process of law.”
  • Procedural Due Process
    • Procedural Due Process, based on the idea of fairness, constitutes the legal procedures required before a person is deprived of life, liberty, or property, for example procedures relating to notice, discovery, availability of counsel, cross-examination, opportunity for hearing, and confrontation of witnesses.
  • Substantive Due Process
    • Substantive Due Process is the doctrine that the Court can protect fundamental rights from government interference, even if procedural protections are satisfied and the rights are unenumerated.
    • The Oxford Introductions to US Law: Constitutional Law, by Dorf and Morrison
      • “The Due Process Clauses of the Fifth and Fourteenth Amendments, which are traceable to the Magna Carta, forbid arbitrary exercises of power; laws that unreasonably deny persons the ability to exercise their rights to life, liberty, or property have the form of law but not its substance; thus, they deprive persons of liberty without due process of law. Hence we have the doctrine that has come to be known as “substantive due process.”

Privacy

Personhood Bills

  • The Constitution uses the terms person and people.
  • H.R.23 – Sanctity of Human Life Act, 113th Congress congress.gov
    • The life of each human being begins with fertilization, cloning, or its functional equivalent, irrespective of sex, health, function or disability, defect, stage of biological development, or condition of dependency, at which time every human being shall have all the legal and constitutional attributes and privileges of personhood.
    • The terms “human” and “human being” include each and every member of the species homo sapiens at all stages of life, beginning with the earliest stage of development, created by the process of fertilization, cloning, or its functional equivalent.
  • Montana House advances ‘personhood’ bill to limit abortionsAP
    • The Montana House advanced on Thursday a measure that would ask voters to change the state Constitution to define life as beginning at conception
    • The bill defines persons as “all members of mankind at any stage of development, beginning at the stage of fertilization or conception, regardless of age, health, level of functioning or condition of dependency.” It would make abortion a criminal act, but exclude unintentional acts by mothers, such as miscarriage.
  • Timeline of the Personhood Movement ProPublica
    • Where it came from and where it stands today
  • Unborn Victims of Violence Act of 2004 Wikipedia
    • The Unborn Victims of Violence Act of 2004 (Public Law 108-212) is a United States law which recognizes an embryo or fetus in utero as a legal victim, if they are injured or killed during the commission of any of over 60 listed federal crimes of violence. The law defines “child in utero” as “a member of the species Homo sapiens, at any stage of development, who is carried in the womb.”
    • The law applies only to certain offenses over which the United States government has jurisdiction, including certain crimes committed on federal properties, against certain federal officials and employees, and by members of the military. In addition, it covers certain crimes that are defined by statute as federal offenses wherever they occur, no matter who commits them, such as certain crimes of terrorism.
    • The legislation was both hailed and vilified by various legal observers who interpreted the measure as a step toward granting legal personhood to human fetuses, even though the bill explicitly contained a provision excepting abortion, stating that the bill would not “be construed to permit the prosecution” “of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf”, “of any person for any medical treatment of the pregnant woman or her unborn child” or “of any woman with respect to her unborn child.”
    • Some prominent legal scholars who strongly support Roe v. Wade, such as Prof. Walter Dellinger of Duke University Law School, Richard Parker of Harvard, and Sherry F. Colb of Rutgers Law School, have written that fetal homicide laws do not conflict with Roe v. Wade.
    • A principle that allows language in law to not conflict with Roe, which logically should trigger Roe’s “collapse” clause, was explained in Webster v. Reproductive Health Services, 492 US 490 (1989). Until such language becomes the basis for laws that specify penalties for abortion, the issue is not even before the court, of whether or not such language conflicts with Roe, and if so, which should be struck down.

Distinct Questions

  • The philosophic question when a human zygote-embryo-fetus becomes a person / human being
  • The moral question regarding the conditions under which abortion is morally wrong
  • The normative question regarding the conditions under which abortion should be illegal.