Misreading and Transforming Casey for Dobbs

AuthorSherif Girgis
PositionAssociate Professor of Law, Univ. of Notre Dame. Princeton Univ., Ph.D. expected 2022; Yale Law School, J.D. 2016; Univ. of Oxford, B.Phil. (M.Phil.; Rhodes Scholarship) 2010; Princeton, A.B. (summa cum laude) 2008
Misreading and Transforming Casey for Dobbs
In Dobbs, Mississippi has asked the Supreme Court to uphold a fifteen-week
abortion ban by overturning Roe and Casey. Some have proposed that the
Court could instead uphold the ban under Casey’s undue-burden test, on the
ground that a law that leaves women a fair opportunity to choose whether to
abort (here, up to the fifteenth week) creates no undue burden. Many have noted
that this proposal would flout Casey’s rejection of undue burdens until viability,
which comes long after fifteen weeks. This essay focuses on another problem:
that the proposal would transform the meaning of the phrase undue burden
itself, and with it the entire logic of abortion rights. Whether ultimately sound
or not, a fair-opportunity ruling could not rest on stare decisis.
Casey uses undue burdenin a synchronic sense, referring to laws that
make abortion too hard to get at this or that point in pregnancy. By contrast, a
fair-opportunity ruling would read undue burdenas a diachronic test, which
courts could apply only by looking at the law’s impact over this or that period
of time. (Specifically, Casey uses undue burdento refer to any incidental reg-
ulation of the procedure at some point that prevents abortions almost as much
as a ban at that point; Dobbs would read the phrase to denote actual bans that
cover too long a stretch of the pregnancy.) And the change would be more than
semantic. Dobbs’s undue burdenconcept would perform a completely differ-
ent doctrinal function and bring in tow a novel constitutional rationale for the
resulting abortion right. Leaving nothing of Casey’s (or Roe’s) logic intact, this
approach could not claim support in stare decisis, whatever its other merits.
The contrary impression is traceable to enduring misreadings of Casey by sup-
porters and critics alike. So, clarifying exactly why Dobbs cannot rely on Casey
will shed new light on that pivotal precedent.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
A. Casey’s Distinction Between Prohibitions and Undue Burdens 336
B. The Undue-Burden Test’s Formulations and Rationale . . . . . 339
* Associate Professor of Law, Univ. of Notre Dame. Princeton Univ., Ph.D. expected 2022; Yale
Law School, J.D. 2016; Univ. of Oxford, B.Phil. (M.Phil.; Rhodes Scholarship) 2010; Princeton, A.B.
(summa cum laude) 2008. © 2022, Sherif Girgis.
II. THE CONFLICT WITH CASEYS RELIANCE ON ROE . . . . . . . . . . . . . . 341
IV. OTHER IMPLICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
Will the Supreme Court this year overturn Roe v. Wade
? The Mississippi
law under review in Dobbs v. Jackson Women’s Health Center
bans most
abortions after fifteen weeks of pregnancy.
This ban runs afoul of Roe as well
as Planned Parenthood of Southeastern Pennsylvania v. Casey.
So the Court
may face a stark choice: invalidate the law based on those precedents or
uphold it by replacing Roe and Casey’s regimes with rational-basis review of
abortion laws.
(It is hard to find support for a third option outside Roe and
Casey, too.
That is, without a basis in precedent, and given the dearth of other sources of law on which to rest
new abortion doctrines, it is hard to find even colorable legal support for an opinion upholding the
Mississippi law without eliminating a constitutional entitlement to elective abortions. By that I do not
mean simply that such an opinion would be unsound, all things considered, or un-originalist. I mean that
it is hard to see how the opinion would even write,no matter which modalitiesof interpretation the
Court permitted itself to draw upon. See PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 12 (1991)
(describing six modalities: historical, textual, structural, doctrinal, ethical, prudential). No support exists
in text, history, a repurposing of precedents, or even bright-line ethical considerations (bright-line, so as
to seem judicial, not legislative). See Sherif Girgis, Two Obstacles to (Merely) Chipping Away at Roe in
Dobbs (Aug. 19, 2021) (unpublished manuscript), https://ssrn.com/abstract=3907787.
) Mississippi all but says there is no alternative,
its opponents
stress the point,
and amici on both sides (including the United States
) over-
whelmingly agree.
1. 410 U.S. 113 (1973).
2. Dobbs v. Jackson Women’s Health Org., No. 19-1392, 2021 WL 1951792 (cert. granted May 17,
3. The law excepts cases of medical emergencyor severe fetal abnormality.Miss. Code Ann. §
41-41-191(4)(a) (2021).
4. 505 U.S. 833 (1992).
5. More precisely, in a post-Roe world, laws would no longer get more than rational basis review just
because they limited elective abortions. But they would still garner heightened scrutiny if they suffered
from a constitutional defect not specific to abortion, like racial classification. Also likely to survive
Roe’s reversal would be a constitutional entitlement to abortions where the mother’s life is in
jeopardy,perhaps based on equal protection. Roe, 410 U.S. at 173 (Rehnquist, J., dissenting).
7. Mississippi offers in passing only two alternatives: upholding the law without articulating a new
legal test to replace Roe and Casey, Brief of Petitioners at 46, Dobbs v. Jackson Women’s Health Org.,
No. 19-1392 (cert. granted May 17, 2021); or upholding under Casey on the ground that the law is not a
substantial obstacle for a large fraction of women seeking an abortion, id. at 4647. The first proposal is
really no positive alternative at all, and the second flatly misreads the so-called large-fraction test, as
explained below. See infra notes 7881 and accompanying text.
8. Brief of Respondents at 43, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (cert. granted
May 17, 2021) ([A]ny abandonment of viability would be no different than overruling Casey and Roe

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