• Eric Scarffe

Overturning Roe v. Wade: The Court’s New Jurisprudence of Doubt

The history of abortion law in the United States has long been well trodden ground for many lawyers, scholars, and activists. Nevertheless, with decision in Dobbs v. Jackson (2022) now finalized, there has been a resurgence of interest in this topic from people around the world. In this post, I work through some of the reasoning offered by the Court in its decision to overturn Planned Parenthood v. Casey (1992) and Roe v. Wade (1973). Ultimately, I argue that the relevant ‘test’ the Court purports to adopt for determining what rights fall under the ‘liberty’ protected by the fourteenth amendment is misguided. Moreover and concerningly, this misguided test carries risks. Other liberties are vulnerable to the adoption of this test. Important protections, such as for same-sex marriage and interracial marriage, could be lost under the precedent of Dobbs. This majority decision has traded a sound jurisprudential tradition for a jurisprudence of doubt.

Let us begin with the Court’s rationale. In short, the Court argues, following Washington v. Glucksberg (521 US 702, 1997) that the relevant test for determining whether a liberty is protected under a substantive reading of the due process clause is to investigate whether the liberty (or right) in question is found to be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” (Dobbs, p. 5). Finding no ‘right to an abortion’ being deeply rooted in the nation’s history, the Court concludes “[w]hen we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion” (p. 14-15).

On its face, this ‘test’ would likely appear to be unobjectionable to most outside observers—a fact that is a testament to the influence ‘originalism’ has had on the general public since its popularization by the failed confirmation of Robert Bork in the 1980s. However, in addition to the many reasons why such a test is an untenable way to interpret what liberties are protected by the Fourteenth Amendment, in practice I believe the crux of the Court’s argument trades in what Casey correctly describes as a ‘jurisprudence of doubt.’

To begin, then, the first reason such a test is untenable has to do with the troubling implications this test would have for the Court’s precedent. In this regard, I follow Cass Sunstein (2009) in thinking that any method of constitutional interpretation must, in part, be justified on the results it produces.[1] As such, if it were the case that only those rights found to be ‘deeply rooted’ in US history were protected under the Due Process Clause, this would certainly rule out protections for same-sex marriage (Obergefell v. Hodges (2015) and intimate association (Lawrence v. Texas (2003)), but also protections for interracial marriage (Loving v. Virginia 1967). Of course, the Court’s majority opinion argues that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion”; however, its rationale that because abortion “uniquely involves” a State’s interest in pre-natal life would be erroneous if the Court were to follow its own logic (Dobbs p. 66, 71). The question, as the Court construes it, is not whether a law prohibiting same-sex marriage or inter-racial marriage would survive rational-basis review, but whether the Court was correct in finding these to be protected rights in the first place. If we were to accept that only those rights determined to be ‘deeply rooted in this nation's history’ qualify, than certainly the Court’s finding in this case has implications for these other precedents as well.

In a similar vein, the second objection to the test the Court has applied has to do with the way it has been applied in this case. Indeed, it has undoubtedly been popular to speak of Roe and Casey as finding there to be a constitutionally protected right to an abortion. The Court follows this way of framing the question, concludes that they “are aware of no common-law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of pregnancy” (p. 20). However, this framing ignores the other (more plausible) way of understanding these previous cases: namely, that it was not about whether or not Roe found there to be a right to an abortion, but about whether roe found a right to be free from government interference when making procreative decisions. Indeed, not only is this reading supported by subsequent decisions which found federal Medicaid law not to require states to pay for the abortions of poor pregnant persons that were not medically necessary (see, Beal v. Doe, Poelker v. Doe, and Maher v. Roe, 1977).[2]

This difference in framing may strike some as irrelevant, but it has important implications for the sorts of evidence the Court might have looked for in determining whether or not Roe and Casey were rightly decided. For instance, in marshalling evidence for their own conclusion, the Court looked for evidence about whether states had previously enshrined a ‘right to an abortion’ in their constitutions or legislative enactments. Finding no such evidence, the Court concluded that no such right exists, and dismisses the idea that such a right could be grounded as part of “a broader entrenched right” to autonomy (p. 30). In contrast, when Roe and Casey are understood as protecting pregnant persons against governmental interference in their procreative decisions, this not only makes sense of previous decisions which conferred no obligation on Federal or State governments to pay for such procedures, but one finds the lines of precedent cited by both Roe and Casey to be far more compelling. Thus, even if we were to accept the Court’s ‘deeply rooted’ test as legitimate, I think there is good reason here to think the Court has applied it in the wrong way.

Finally, in striking down the appeal to stare decisis (the legal principle that specifies courts will adhere to precedent) made by the Respondents (as well as the justices in the dissent), the Court’s majority opinion argues that stare decisis should be abandoned in this case because the previous cases were too vague: both in their rationale as well as their remedy. However, once one shifts the framing of the question from whether the constitution protects a ‘right to an abortion’ to whether the constitutions protects pregnant persons from government interference in making procreative decisions, far from being plucked out of thin air, the Court’s previous rationales seem to logically follow from precedents the majority opinion itself claims not to call into question. That is, the decisions in Roe and Casey seem to straightforwardly fall under the line of privacy-related precedents that protect people’s rights ‘to make and implement important personal decisions without governmental interference’ (p. 49).

If stare decisis is to be abandoned, then, it must be because the remedies offered by Roe and Casey are fundamentally unworkable. Indeed, the Court notes that the point of viability itself is a moving target, and highly dependent on factors (e.g., the availability of medical resources and technology) that are separable from characteristics of the fetus (p. 51-52). Along similar lines, the Court also goes on to criticize both the ‘undue burden’ as well as Chief Justice Robert’s ‘reasonable opportunity’ standards as being wholly arbitrary, unprincipled, and offering no firm boundaries or guidance to legislatures for their implementation.

Ultimately, I think this is the crux of the majority’s argument: that because some doubt can be introduced as to the exact source or nature of the boundaries in these decisions, the Court concludes that there must be nothing there in the first place. As the Court notes, not only did the justices themselves disagree on what constituted an ‘undue-burden’ in Casey itself, “but there is obviously no clear line between a fraction that is ‘large’ and one that is not” (p. 59). For many philosophers, this line of criticism will be a familiar one—not only because it has been echoed by many philosophers who have previously commented on these decisions,[3] but because (as a discipline) picking out such ambiguities is the raw stuff philosophy tends to trade in. As philosophers, therefore, one lesson we might take away from the Dobbs decision is a reminder that Aristotle was right: one not only cannot ask for more specificity than a given domain will allow, but asking for such specificity is to err.

The same can be said of the majority’s opinion in this case. As Hart famously notes, all law (be it a local ordinance prohibiting ‘vehicles’ in a park or a constitutional amendments) is vague, and requires all participants in a legal system (including law-makers, law-enforcers, judges, and ordinary citizens) to actively engage in interpretation. As such, the ability to introduce some ‘doubt’ into the Court’s previous decisions is not itself a reason they should be abandoned (and, for whatever its worth, it is certainly not clear that the proposed ‘deeply rooted’ test avoids any of the ambiguities or vagaries the majority opinion deems so irreparable). The majority errs in asking for more clarity than law can provide: ushering in a jurisprudence of doubt as destructive and unlimited in scope as we allow.

[1] C. Sunstein (2009). A Constitution of Many Minds: Why the Founding Document Doesn’t Mean What it Meant Before, Princeton University Press. [2] See also L. Greenhouse, (2005). Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey, Times Books. [3] See Shrage, L. Abortion and social responsibility: Depolarizing the debate. Oxford University Press on Demand, 2003.

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