Misreading and Transforming Casey for Dobbs

• Author: Sherif Girgis
• Position: 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
• Pages: 331-350

Misreading and Transforming Casey for Dobbs

SHERIF GIRGIS*

ABSTRACT

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 burden” in 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 burden” as 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 burden” to 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 burden” concept 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.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332

I. THE CONFLICT WITH CASEY’S HOLDINGS AND LOGIC . . . . . . . . . . . 336

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.

331

II. THE CONFLICT WITH CASEY’S RELIANCE ON ROE . . . . . . . . . . . . . . 341

III. THE IMPOSSIBILITY OF JUST REPURPOSING CASEY . . . . . . . . . . . . . . 346

IV. OTHER IMPLICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350

INTRODUCTION

Will the Supreme Court this year overturn Roe v. Wade

1

? The Mississippi

law under review in Dobbs v. Jackson Women’s Health Center

2

bans most

abortions after fifteen weeks of pregnancy.

3

This ban runs afoul of Roe as well

as Planned Parenthood of Southeastern Pennsylvania v. Casey.

4

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.

5

(It is hard to find support for a third option outside Roe and

Casey, too.

6

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 “modalities” of 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,

7

its opponents

stress the point,

8

and amici on both sides (including the United States

9

) over-

whelmingly agree.

10

1. 410 U.S. 113 (1973).

2. Dobbs v. Jackson Women’s Health Org., No. 19-1392, 2021 WL 1951792 (cert. granted May 17,

2021).

3. The law excepts cases of “medical emergency” or “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).

6.

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 46–47. 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 78–81 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

332 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:331