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Monday, November 29, 2021

Who's Afraid of Gradualism in Dobbs?

The Supreme Court may be poised to overrule Roe v. Wade and eliminate all constitutional abortion rights. That sweeping result is teed up in Dobbs v. Jackson Women’s Health Organization, a case to be argued on Wednesday. Yet whether to overrule nearly 50 years of precedent is not a question that the Court is prepared to answer. Even though both parties and many observers are eager for a final reckoning with abortion rights, the public and the Court itself would be far better served by a more gradual, judicious approach.

The initial problem is that, in Dobbs, the Court has not followed its normal deliberative process. Instead, Mississippi asked the justices to review an abortion prohibition that posed no disagreement among lower courts or any other conventional basis for review. After sitting on the case for nearly a year, the justices finally agreed to consider a single issue: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” That question focuses on viability, is concerned with whether “all” relevant restrictions are categorically unlawful, and identifies no specific precedent to be overruled. Onlookers were accordingly left to debate just what the Court had in mind in granting the case. 

Mississippi then seized the initiative by submitting a merits brief that primarily argued for overruling all precedents recognizing abortion rights—a possibility that the state’s certiorari petition had raised, if at all, only in a half-hearted footnote. So what had seemed like an important but limited challenge to abortion rights suddenly became a broadside attack on decades of case law. In response, the abortion providers objected to Mississippi’s bait-and-switch and briefly asked for dismissal of the case; but they also agreed that “There are no half-measures here.” So the parties ultimately offer the same unyielding choice between two starkly opposing options.

Yet advocates have strategic reasons for framing certain options for the Court while excluding others. Lawyers might avoid offering a half measure for fear of undermining their main argument, particularly when they are left to guess about the justices’ views. And political activists might prefer that the Court issue a precipitous ruling so that they can better mobilize against the judiciary. A partial defeat in court might be far less useful for politicos precisely because it would appear more legitimate or non-partisan. For these reasons, litigants do not necessarily speak for all affected people, and the fact that both sides pose a stark choice may only prove that the adversarial system has given way to political polarization. 

Normal caution might seem unnecessary in Dobbs because the issue of abortion rights is already so familiar to the justices. What law school graduate, after all, has failed to think about Roe? But partial knowledge is often the most confident, and deliberation has a way of revealing things we didn’t expect. Gradualism can also allow the Court to learn from experience rather than armchair speculation. The Dobbs briefs are full of predictions about what would happen—doctrinally, practically, and politically—if abortion case law changed. By moving incrementally, the Court can begin to replace those predictions with facts and ultimately make a more informed decision at a later date. 

The Roberts Court has repeatedly shown a similar instinct for gradualism. Before major decisions on issues like campaign finance regulation and same-sex marriage, for instance, the Court signaled its interest in issuing a transformative ruling long before actually doing so. In the meantime, the Court moved slowly, taking only small steps before bold action. The idea that the Court should give notice before issuing a disruptive decision, which I have called “the doctrine of one last chance,” has many benefits. Giving the losing side one last chance to make its case can clarify how the justices are reasoning through the issue, expose that reasoning to sustained scrutiny and criticism, and prompt the Court to adjust course. Even if the Court follows through on its initial views, providing notice can prompt action by the political branches and help smooth out disruptive legal changes. 

The Court’s newest justices have continued the one-last-chance approach. Earlier this year, the Court considered whether to overrule a major precedent on religious liberty. Justice Barrett, joined by Justice Kavanaugh, declined to do so—not because they thought the precedent was correct, but rather because they were unsure just how to replace it. There is no doubt that these justices have thought deeply about religious liberty, yet they still saw wisdom in proceeding cautiously. And that intuition may already have been borne out, given the “difficulty” of later cases. In Dobbs, a similar approach could support a limited holding, a request for additional briefing and argument, or dismissal of the case.

In an indirect way, the Court has already produced something like incrementalism on abortion rights. By allowing Texas’s SB8 to operate for several months, the justices have essentially permitted a major state to create a post-Roe world. But while that experience has fostered public debate and been informative in some ways, litigation over SB8 has so far focused on complex procedural issues, not the substantive and precedential questions pertinent to Dobbs. Given those differences, and the fact that the briefing in Dobbs was well underway when SB8 came into effect, the events in Texas are no substitute for caution in Dobbs itself. 

Of course, judicial gradualism can only achieve so much. Because the nation is divided by starkly conflicting legal and policy views on abortion, Dobbs will be met with second-guessing, if not condemnation, no matter how it comes out. Criticism, as they say, comes with the territory. What the Court can control, however, is whether it treats the issue of abortion rights with the care it deserves. Roe itself was famously faulted, including by Justice Ginsburg, for moving too fast. It would be ironic if Roe’s latest critics have failed to learn that lesson.

Posted by Richard M. Re on November 29, 2021 at 11:00 AM | Permalink


Thus, we can know through both Faith and reason, that a plauralistic society, that desires to render onto Caesar, what belongs to God, just like a plauralistic church that desires to render onto Caesar, what belongs to God, will always end with tyranny.

“For the Holy Spirit was not promised to the successors of Peter that by His revelation they might make known new doctrine, but that by His assistance they might inviolably keep and faithfully expound the Revelation, the Deposit of Faith, delivered through the Apostles.”

“When God Is denied, Human Dignity disappears.” Pope Benedict XVI

Posted by: N.D. | Nov 30, 2021 9:57:58 AM

“Speaking of disingenuous arguments...”

Which is why, Thank God, this statement is held to be a self-evident Truth and not a “disingenuous argument”:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--“

Only when there are those who desire to render onto Caesar, or themselves, what Has Always and Will Always belong to God, does this self-evident Truth, appear to become to some, “a disingenuous argument”, but this self evident Truth, Thank God, remains, in essence, a self-evident Truth. All human persons possess equal human Dignity, because we have all been Created equal in Dignity, while being complementary as a beloved son or daughter, in The Eyes Of God.

Posted by: N.D. | Nov 30, 2021 9:40:23 AM

"Back in reality, individual women have, you know, actual free will and agency..."

No they don't. Free will is a myth. It's a vestige a bygone era; the sort of stuff that led people to believe that humans, including fetuses, have "souls."

"So, it's not going out on a limb to say the decision has stood the test of time as it closes in on half a century of existence."

Speaking of disingenuous arguments...

Don't get me wrong: three generations of progressive imbeciles really is enough. Aside from their religious commitments, why the hell these "social conservatives" don't want you to have abortions, whether you want them or not, is somewhat mind boggling.

Posted by: Anonymous Bosch | Nov 30, 2021 9:08:17 AM

“Who's Afraid of Gradualism in Dobbs?”

I suppose anyone who would have recognized that Gradualism would have continued to undermine Dred Scott’s inherent Unalienable Right to Liberty, as well as the inherent Unalienable Right to Liberty of other beloved sons and daughters, would recognize that Gradualism would continue to undermine the inherent Unalienable Right to Life of certain beloved sons and daughters.

Posted by: N.D. | Nov 29, 2021 10:31:17 PM

@ Asher, how about you can only comment here if you've published in a flagship law review?

Posted by: thegreatdisappointment | Nov 29, 2021 9:56:39 PM

I've come around to the view that comments on all Prawfsblawg posts should be closed, unless you can figure out a way for only law professors, me and the one other serious appellate lawyer who occasionally comments to comment.

Posted by: Asher Steinberg | Nov 29, 2021 9:26:59 PM

thegreatdisappointment = never has any responses to substantive points; as his idol might exclaim: "SAD!"

Posted by: kotodama | Nov 29, 2021 5:52:54 PM

kotodama = extra salty

Posted by: thegreatdisappointment | Nov 29, 2021 5:33:13 PM

"abortionists" LOL!

Only in the RWers' paranoid dreams are there so-called "abortionists" lurking in dark alleys waiting to spring the procedure on unsuspecting passersby.

Back in reality, individual women have, you know, actual free will and agency and make a decision one way or the other based on their own considered judgment. And strangely enough, it seems the only ones actually forcing their views on others are the activists harassing women trying to access clinics.

The sad and tired "abortionists" argument (or nonargument really) is particularly ironic these days given the abundance of reactionaries out there protesting that a decision to refuse a proven safe and effective vaccine for a highly contagious potentially lethal virus is a sacred "individual choice" that must never been questioned—something that is completely routine, mundane, and trivial for literally millions of people across the planet. Unfortunately it seems reactionaries won't extend the same consideration to women grappling with a far more complex and fraught decision involving numerous individualized circumstances.

Posted by: kotodama | Nov 29, 2021 5:23:29 PM


Roberts will write the opinion striking down the statute, Kavanaugh will concur, Barrett will write the dissent

Posted by: Abortion will not go the way of Hong Kong | Nov 29, 2021 5:05:30 PM

A lot of salty abortionists on this site lately.

Posted by: thegreatdisappointment | Nov 29, 2021 4:57:27 PM

Oh, and the "look what you made us do!" argument that if only Roe hadn't forced the hand of places like Mississippi, Texas, and Louisiana, they would have legalized it on their own in due course, is just plain silly.

Posted by: kotodama | Nov 29, 2021 3:27:42 PM

The Ginsburg story is a bit misleading because it tends to suggest that she also felt the bottom-line result lacked some legitimacy due to the way in which it was reached. But of course she agreed 100% with the bottom-line result and reaffirmed it over and over again.

Moreover, the story tends to obscure the fact that Roe wasn't particularly controversial at the time. It was, after all, a 7-2 decision that included folks like Burger, who is nobody's idea of a bleeding heart. A broad majority of the public then also supported the right to choose at least as a general matter and continues to do so to this day. So, it's not going out on a limb to say the decision has stood the test of time as it closes in on half a century of existence.

The above also proves that, on this particular issue, Ginsburg's criticism was flat out wrong. It's not like she speaks for everyone on the left anyway. In many ways, including this one, she's more on the conservative (in the true sense of the word) end than most folks. That's pretty much what someone would expect from an appointee of Clinton—the great triangulator—anyway.

Finally, the "look, even Ginsburg criticized Roe" thing tends to get trotted out frequently by people looking to make bad-faith arguments.

Posted by: kotodama | Nov 29, 2021 3:26:36 PM

"famously faulted, including by Justice Ginsburg"

I wonder how she would have reacted if they took the military abortion case she worked on. It made some broad arguments.

Posted by: Joe | Nov 29, 2021 2:19:37 PM


Yet, It can happen, that even, or surly due or thanks to 50 years that have passed, the court would be willing to shift quickly to another or new phase, despite old precedents. Well, sometimes, social, scientific, technological advances, necessitate it.

Speaking of abortion and viability:

There are scientific progress, or new angels, that may persuade the court differently. Not everything is political, there are more than one legal and constitutional solutions for problems. That doesn't mean political division.

Hereby as illustration, bill of the state of Missouri (House bill No. 126, 100th General Assembly) concerning abortions. I quote:

The Supreme Court in Roe discussed "the difficult question of when life begins" and wrote: "[p]hysicians and their scientific colleagues have regarded [quickening] with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes 'viable', that is, potentially able to live outside the mother's womb, albeit with artificial aid". Roe, 410 U.S. at 160. Today, however, physicians' and scientists' interests on life in the womb also focus on other markers of development in the unborn child, including, but not limited to, presence of a heartbeat, brain development, a viable pregnancy or viable intrauterine pregnancy during the first trimester of pregnancy, and the ability to experience pain;

End of quotation:

Also, there wasn't any particular issue with Smith in the case of Fulton. Strict scrutiny was justified there and warranted. All nine Justices agreed there on that. And quoting Justice Barrett:

" We need not wrestle with these questions in this case, though, because the same standard applies regardless whether Smith stays or goes".

Things are more dynamics by nature in law or courts. It is naturally so. There in no need to dramatize things necessarily. Issues are critical. One can understand that. But, not necessarily political with all due respect.


Posted by: El Roam | Nov 29, 2021 1:16:12 PM

"Roe itself was famously faulted, including by Justice Ginsburg, for moving too fast. It would be ironic if Roe’s latest critics have failed to learn that lesson."

I'm sorry, but "ironic" does not mean "typical."

Posted by: TheRedPen | Nov 29, 2021 11:27:38 AM

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