Even Dobbs May Not Have Granted a License for Every Draconian State Abortion Restriction

Bad as the ruling was, women could salvage constitutional arguments to fend off some extreme laws (Part 1 of 2)

(Eli Wilson; Shutterstock)

On June 24, 2022, when the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, it purported to overturn the entire half-a-century-long line of abortion rulings following Roe v. Wade. In doing so, it insisted that there were no half-measures available, even though the court had taken half-steps on regulating abortion previously in Planned Parenthood v. Casey. The court majority also insisted that the right to elective abortion until fetal viability outside the womb was inseparable from Roe’s other holdings, despite contentions to the contrary by Chief Justice Roberts in his concurrence, by several other prior Supreme Court justices, by at least one amicus brief to the Dobbs court, and even by the petitioner State of Mississippi before the Supreme Court agreed to hear the Dobbs case. And Justice Samuel Alito, writing for the conservative majority in Dobbs, characterized the Casey court’s view of Roe’s central holding as, “A State may not regulate previability abortions for the purpose of protecting fetal life,” even though neither Casey nor any prior Supreme Court opinion characterized Roe as such.

The court’s questionable characterization of Roe and sweeping rejection of any remedies for its perceived failures suggests blind spots in the court’s ruling, especially given that there were other portions of Roe and Casey that Justice Alito left entirely unmentioned. This apparent tunnel vision raises a peculiar and important question: Did the court get Roe and Casey wrong? And if so, do the Constitution and the court’s precedents still protect some degree of abortion access after Dobbs? A close reading of Dobbs, of Roe’s antecedents and of the court’s Roe-related rulings indicate the answer is yes: The court has, perhaps inadvertently, left some parts of its abortion jurisprudence intact. While Dobbs still represents a major loss for women’s reproductive freedom, the Supreme Court abortion jurisprudence that remains could provide women with some limited legal protections against particularly draconian state anti-abortion legislation.

The Ruling in Roe v. Wade

To see why this is so, it is best to start with Roe itself and its companion case, Doe v. Bolton. Roe addressed a Texas statute that prohibited all abortions except for those necessary to preserve a woman’s life. Doe addressed a comparably less restrictive Georgia statute that permitted abortions that threatened a woman’s life or health or resulted from rape or incest. But Georgia’s regime required that six health care providers, usually doctors, approve the abortion and that abortions be performed in a specially designated hospitals, among other special requirements.

The Supreme Court struck down both the Texas and Georgia laws as too restrictive to be constitutional. What is often overlooked about Roe, however, is whose rights the opinion was intent on securing. Justice Harry Blackmun, Roe’s author, had previously been general counsel for the Mayo Clinic. This former doctor’s lawyer said clearly in the decision that Roe “vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention” (emphasis added). The woman had a right, too, but only insofar as she was a patient seeking treatment: In Doe, Blackmun emphasized “the woman’s right to receive medical care in accordance with her licensed physician’s best judgment and the physician’s right to administer it.”

Essentially, the court was bothered by political interference with medical decision-making and announced that, “The abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.” Accordingly, the Roe opinion uses the words “medicine,” “medical”, “physician,” “doctor,” “practitioner,” “treat,” “treatment,” “profession,” “professional,” and “patient” 181 times. In contrast, the decision uses the words “woman,” “women,” “girl,” or “female” 54 times, and “mother” 33 times. Roe’s majority was not a feminist one.

The three concurring opinions in the case followed the same line of reasoning, but the issuance of no fewer than four opinions by the seven justices that signed on to the ruling suggests that much of what Roe said didn’t have unequivocal majority support until later decisions. Several in the majority qualified their support of an abortion right. Chief Justice Warren Burger stated in his Doe concurrence that, “Under the Fourteenth Amendment to the Constitution, the abortion statutes of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women” (emphasis added). Justice Potter Stewart indicated that state interests in a pregnant woman’s health and “the potential future human life within her” were “legitimate objectives, amply sufficient to permit a State to regulate abortions [early in pregnancy] as it does other surgical procedures” (emphasis added), but he thought regulations or prohibitions of second- and third-trimester abortions were issues for a future case. Justice William O. Douglas’ concurring opinion viewed abortion as a medical issue and thought elective abortions could be prohibited after “quickening,” a common law legal notion roughly coinciding with the end of the first trimester of pregnancy. Only four justices—a mere plurality—endorsed barring strong state regulation or prohibition of abortion before fetal viability, which was roughly identified with the start of the third trimester. Note that to spot that this was only a plurality view, one had to dig into the concurring opinions.

What the majority held in Roe was the following. First, a doctor had a right to perform an abortion where, in his good faith judgment, it was necessary to preserve a woman’s life, physical health, or mental health—a therapeutic abortion, not an elective one. Second, the constitutional “right to privacy,” was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” in consultation with her physician. The governing constitutional standard for overriding the right of privacy was and is strict scrutiny: A law curtailing this right will be upheld only if it is narrowly tailored to achieve a compelling state interest—a nigh-impossible standard to meet, one that is often referred to as “strict in theory but fatal in fact.” Third, the state’s interest in a woman’s health was a “legitimate” basis to regulate abortions similarly to other surgical procedures early in pregnancy, but only became “compelling” enough to regulate abortions differently than other surgical procedures after the first trimester. Fourth, the state’s interests in the fetus’s potential life was an “important” and “legitimate” basis for abortion regulations short of outright prohibition. Together, Roe’s various holdings were seen to have created a “trimester framework” in which targeted, abortion-specific regulations faced the high hurdle of strict scrutiny from the court during the first trimester of pregnancy, then became more legally acceptable in the second trimester and, drawing on the four justices’ plurality view, could become outright abortion bans in the third.

The court basically assumed that if it gave doctors free rein to perform abortions as they saw fit, “good physician[s]” would perform only therapeutic procedures, “despite the presence of rascals in the medical profession.” Roe’s dissenters, however, observed that going forward, “Any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.” Be that as it may, Roe’s intent was hardly radical, contrary to how conservatives and even progressives depicted it later.

From Roe to Casey: An Evolution

Roe’s legal regime evolved over the next decade. Beginning in Planned Parenthood v. Danforth (1976), the Supreme Court quickly said it both did and did not mean what it had said in Roe. At issue in Danforth were a variety of Missouri abortion restrictions, some relatively mundane, such as an informed-consent requirement, and some more restrictive, such as a spousal-consent requirement and a prohibition on “saline-amniocentesis” abortions after 12 weeks.

In the court’s ruling, the Danforth majority affirmatively embraced everything the principal Roe opinion said, including the Roe court’s plurality-supported fetal viability standard. But it effectively replaced Roe’s test for impermissible abortion regulations with an “unduly burdensome” standard under which a law would be subject to Roe’s strict scrutiny regime only if it placed the abortion decision in the hands of a third party, such as a spouse or medical board, or constituted a de facto prohibition of abortion in a substantial majority of cases (in Danforth, between 68% and 80%). In effect, the “unduly burdensome” standard was more accepting of state abortion regulations, and on these grounds, the recordkeeping, reporting and informed-consent requirements were upheld, while only the spousal-consent provision and saline amniocentesis prohibition were deemed undue burdens and struck down.

Later cases, like Harris v. McRae (1980), explained that a denial of public funding for an abortion was not an undue burden either. Harris also foreshadowed a shifting “center” of the Roe regime: Writing for the court, Justice Stewart observed, “It could be argued that the freedom of a woman to decide whether to terminate her pregnancy for health reasons” was “at the core” of Roe—a relocation of the key right from the physician to the woman. Stewart didn’t attempt to settle that argument, concluding that it didn’t affect the resolution of the “undue burden” question. His musings did implicitly demonstrate that seven years after Roe, the court was at best agnostic about what the central point of the case even was.

In City of Akron v. Akron Center for Reproductive Health (1983), Justice Lewis Powell, part of the original Roemajority and now writing for the Akron majority, completed the transformation of Roe’s view of privacy from doctors’ and patients’ rights to women’s reproductive rights. Scholar John C. Jeffries, a former clerk of Justice Powell’s, explained that Akron “recharacterize[d] Roe as holding ‘that the right of privacy, grounded in the concept of personal liberty guaranteed by the Constitution, encompass[ed] a woman’s right to decide whether to terminate her pregnancy,” whereas previously Roe’s had “reduced the woman to a bit player in her own pregnancy.”

At issue in Akron were a grab-bag of regulations: a requirement that second-trimester abortions be performed in hospitals, informed-consent requirements and a 24-hour waiting period after a mother provided informed consent. Many such regulations were adopted with the hope of persuading women to forgo abortion and carry their fetus to term. The court was invited either to overturn the increasingly unwieldy Roe or to uphold these rules as not unduly burdensome. The court chose door number three: It declared states could not regulate pre-viability abortions to protect or promote fetal life, and broadened the “undue burden” rule, allowing the court to strike down every one of the regulations before it.

Justice Sandra Day O’Connor, who had replaced Justice Stewart to become the first woman on the high court, dissented, joined by Roe dissenters Byron White and William H Rehnquist. O’Connor contended that the court’s previous “unduly burdensome” regime should have been retained (along with the post-Roe rulings that applied that regime), making it easier for the state to regulate abortions at every stage. But she further argued that Roe’s increasingly (in her view) inaccurate and irrelevant three-stage trimester framework should be scrapped, with the states’ interests in potential fetal life and a woman’s health being recognized as compelling throughout pregnancy. The resulting jurisprudence would have preserved Roe’s original medical core by protecting a woman’s access to therapeutic abortions, and by using the “unduly burdensome” regime to strike down state regulations that placed the abortion decision in the hands of a third party and or prohibited the most safe and common abortion procedures. However, it would have left the question of whether elective abortions were permitted entirely to the democratic process.

In Webster v. Reproduction Health Services (1989), decided after Burger’s and Powell’s retirements, O’Connor became the Supreme Court’s swing vote on abortion, and her more restrictive views gained ground. Three years later, in Planned Parenthood v. Casey (1992), the court gave the states a bit more room to govern abortions: The court overturned Akron and a post-Akron case called Thornburgh v. American College of Obstetricians (1986), both of which had struck down state abortion regulations. Per O’Connor, the court also restored the “unduly burdensome” test as the applicable standard for reviewing regulations of abortion. Elective abortions were still permitted (the court’s opinion openly blanched at the idea of striking them down after nearly two decades), but some degree of early, targeted—that is, abortion-specific—regulation was now clearly permissible, and states were again free to promote fetal life through persuasive efforts. Further, the court scrapped Roe’s trimester framework and purported to limit Roe to its “central holding, that [fetal] viability marks the earliest point at which the state’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”

Note that ironically, the Casey court placed at Roe’s core the concept of “fetal viability”—a standard that Roe’s majority, as mentioned earlier, hadn’t actually adopted. But as Chief Justice Roberts dryly observed in the oral arguments in Dobbs, this only became “the central principle of Roe because it was pretty much all that was left after they were done dealing with the rest of it.” 

 And note that Justice Alito’s Dobbs opinion characterizes this “central holding” incorrectly when it summarizes it as, “A state may not regulate previability abortions for the purpose of protecting fetal life.” The Casey court’s summary of Roe declared that the state’s interest in fetal life justified state bans on elective abortions only postviability. This is not the same as saying the state’s interest in fetal life could not justify state regulations on abortions previability. In effect, Alito characterized Roe as absolutist in a way it was not, implying that the only choice was to overturn the decision altogether, rather than just modify it.

The Blind Spots in Dobbs—and the Possibility Some Constitutional Abortion Rights Remain

Justice Alito’s Dobbs opinion mentions Casey, but it is otherwise silent on the above-mentioned history, suggesting there are rulings his opinion might well have missed and thus failed to overturn. Alito also repeated the Casey court’s error by insisting that fetal viability was inseparable from Roe itself, and he incorrectly wrote that Casey had substituted novel conceptions of liberty for older ideas about privacy, when in fact it was Akron that did that. Alito further insisted that Casey’s holding demanded “that a State may not regulate previability abortions for the purpose of protecting fetal life,” but Casey, thanks to O’Connor and a seven-justice majority, itself had rejected such a dogma by overturning Akron and Thornburgh, cases that had freely struck down previability abortion regulations.

Moreover, Alito insisted that Casey had “substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation that imposed an ‘undue burden’ on a woman’s right to have an abortion.” But the precedential record shows that it was neither a “new rule” nor of “uncertain origin.” Indeed, Alito likely knows better. He advised the U.S. Solicitor General who intervened in Thornburgh in 1986, and he served on the lower court panel involved in the Casey litigation. His panel opinion even cited six O’Connor opinions and three pre-Akron decisions. Justice Alito was either remarkably forgetful in Dobbs or not telling the truth. 

There are other lacunae in Dobbs’ review of the past. When the Dobbs court overturned Roe and Casey, it relied upon the 1997 case of Washington v. Glucksberg, in which the court upheld the constitutionality of the state of Washington’s prohibition on assisted suicide. Under the reasoning in Glucksberg, an “unenumerated” individual right—i.e., a “liberty interest” not specifically mentioned in the U.S. Constitution—is protected by the broad guarantees of the 14th Amendment if it is “deeply rooted in this Nation’s history and tradition” and “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” such that “neither liberty nor justice would exist if they were sacrificed.”

In this vein, Dobbs duly counted how many states banned abortion completely in the mid-nineteenth century, concluding abortion wasn’t such a “fundamental” right—but Dobbs also omitted many other relevant and explicit elements of Glucksberg’s historical test. It thus ignored the fact that in practice, the letter of the law typically wasn’t enforced. While abortion was indeed generally looked poorly upon, the means required to secure the evidence necessary for prosecution were often considered too invasive of women and doctors. This was why Roe was decided under the framework of privacy as well as liberty. As Roe dissenter Justice Byron White recognized in Thornburgh, Roe was premised not “on the notion that abortion is a good in itself,” but rather that “the evil of abortion does not justify the evil of forbidding it.”

And Dobbs’ reliance on Glucksberg is a muddle. Dobbs cited Glucksberg as the governing rule, but failed to note that Roe and Casey—cases that Dobbs was overturning— were precedents Glucksberg had relied upon to fashion its historically oriented inquiry. Dobbs also described a woman’s general right to choose to terminate her pregnancy prior to viability without undue burdens from the government as the entirety of Casey’s central holding. But Dobbs failed to acknowledge that Glucksberg itself had observed that Casey included a second right as central: access to the sort of therapeutic abortions that Harris had likewise suggested were the “core” of the Roe regime.

Alito’s incorrect description of Casey indicates a lack of awareness of crucial aspects of Roe and its related opinions. This silence on Alito’s part in what is otherwise a very long opinion has more than academic implications: It opens the possibility that the Dobbs court, having dismantled much of the court’s pre-Dobbs abortion jurisprudence, has left a few limited constitutional arguments available to women against particularly harsh and restrictive state laws regulating or banning abortions. This possibility and the rights that appear to remain will be explored in the second, concluding installment of this essay through a review of the court’s other abortion jurisprudence, including Roe’s companion case, Doe.