Litman: Scholars Ridicule Dobbs Supreme Court Opinion

Supreme Court decision in Dobbs v. The Jackson Women’s Health Organization is a double disaster. First of all, the rollover of Roe vs. Wade will have a devastating impact on the lives of Americans, especially women of childbearing age. Secondly, it will certainly be subjected to disdain and even ridicule by legal scholars and will lead to the fall of the already fragile public authority of the court.

As many observers pointed out after the draft decision was leaked, the glaring problem with Opinion of Judge Samuel A. Alito, Jr. it is the singling out of the right to abortion as a constitutional stepchild on the fact that abortion was not protected at its founding, and indeed it was sometimes criminalized.

It’s like shooting a fish in a barrel to point out that this historical analysis cannot be reconciled with the court’s recognition of other unlisted and previously criminalized rights that the opinion argues do not put at risk – such as same-sex and interracial marriage, use of contraceptives, and participation in homosexual relationships.

If abortion is a constitutional orphan because previous generations of Americans criminalized it, then how can a court continue to recognize any of these other rights?

Inevitably, Alito’s argument came under attack from both the left and the right. The joint dissent of Judges Stephen G. Breuer, Elena Kagan and Sonia Sotomayor pokes fun at Alito’s rambling treatment of unlisted rights.

And on its own side, on the far right of judicial (and American) thought, the concurring opinion of Judge Clarence Thomas takes the obvious next step: the court must now reconsider – read: abolish – the entire line of unlisted legal jurisprudence.

Comparison leaked draft solution with final product, we can discern one argument that Alito and the rest of the majority have proposed to try to support the contention that abortion can be excluded from the court’s jurisprudence for unlisted rights without destroying the whole construct. It is as follows: “What distinguishes abortion,” writes Alito, “is that it leads to the cessation of “potential life.”

The way it is. This is the main difficulty that makes the abortion doctrine so unpleasant: the vital interests of both the individual and society are at stake. But Alito’s leap from this truism to the conclusion that the right to abortion does not deserve constitutional protection is based on an unfortunate flaw in legal reasoning. It would be illogical to argue that the existence of a state or public interest in the life of a fetus means that there is no individual interest in whether to bring the fetus to term. The balancing interest of the state says absolutely nothing about the existence of the right of the individual.

It would be another profound misrepresentation to say, as Dobbs’s view does, that Rowe and the later Planned Parenthood vs. Casey, an underprotected “potential life”. Both decisions placed great importance (many would say excessive importance) on fetal protection measures. This is why over the years the court has upheld a long series of restrictions on the right to abortion, such as spousal notices and waiting periods.

The very essence of Rowe and Casey’s analyzes was to draw a line between acceptable and unacceptable “burdens” on the decision to keep or terminate a pregnancy. Alito ridicules Cayce’s admittedly amorphous term “improper burden,” but the task of figuring out what is or is not improper in restricting an individual’s right is a common occurrence in constitutional law, and Cayce’s scheme worked. This created a stable situation until President Trump’s appointees set stars in the eyes of anti-abortion state legislators, who began to challenge Rowe to the extreme.

Moreover, Dobbs’ insistence that Roe forbade states “to view the destruction of ‘potential life’ as having any significance” is completely wrong. Instead, it is Dobbs who simply refuses to consider one of the two critical interests on the issue of abortion important. As of Friday, even the most severe restriction on the right to abortion must be supported “if there is a rational basis on which the legislature would think it would serve the legitimate interests of the state.”

“Rational reason” is the simplest standard for denying a right. This puts a woman’s control over her own body on par with the right to play billiards at 4 in the morning.

Of particular note is Judge Brett M. Kavanaugh’s separate agreement with the Dobbs decision because of his nonchalant belief that “today’s court decision properly returns the court to a position of judicial neutrality on the issue of abortion.”

It’s argle bargle like idol Cavanaugh Antonin Scalia could say. The evaporation of almost 50 years of fundamental constitutional protection for women and the sudden empowerment of red states to compete over which can impose the most draconian restrictions, including criminalizing abortion, is not an act of judicial neutrality.

In the end, Dobbs’ opinion offers nothing even remotely convincing in its determination that Rowe was “blatantly wrong”.

Dobbs’s sober assessment of the dissenters is the most plausible explanation for the court’s tragic wrong turn: the repeal of a long-recognised constitutional right “is based on nothing more than the new views of the new judges. Most rejected Caviar as well as Casey for one and only reason: because it has always despised them, and now it has the voice to reject them.”

@HarryLitman