The Abortion Debate - The Culture, Law and Politics of the Alito Majority Versus the Roberts Concurrence

I spent most of my career as an appellate lawyer for the Justice Department doing federal criminal cases. I have my own opinions about abortion, but I’m nobody’s version of an expert, so I don’t know that they’re worth a lot of your time.

However, a Ringside reader, Dennis Saffran, has looked at Dobbs and the questions it considers with what strikes me as a mature and supple approach, and I want to share his views below. Dennis is a New York-based appellate attorney and political and policy writer. A graduate of Harvard and NYU Law School, his full biography is here.

Dennis’s view in a nutshell is that, while there is much to be said for the Dobbs majority, ultimately Roberts’ concurrence was the better option. It’s a serious argument, although I’m not sure that I’m on board, principally for three reasons.

First, Roe was, as Alito says, egregiously wrong the day it was decided. Very few serious people defended what is generously called its legal “reasoning.”

Second, because it was so bad, its defense in the 1992 opinion in Casey — to the extent there was one — was based principally on stare decisis. But simply sticking with a bad decision because we’ve had it for 20 years hardly amounts to a clarion call.

Third, and I concede this is more emotive than anything else, the explicit overruling of Roe was a breath of fresh air. It rattled the liberal Establishment down to their $800 shoes. These people had been getting their way for decades, cocksure that any opposition was too intimidated and too outmanned to do anything about it, still less to take away one of their favorite keepsakes. Dobbs delivered a message of sobriety and humility — a cold shower this bunch had spent years earning. Watching their reaction was like watching the reaction of a bratty 13 year-old whose father has finally had enough.

As I say, that’s just emotive. Dennis’s more sophisticated take follows.

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“Both the Court’s opinion and the dissent display a relentless freedom from doubt … that I cannot share.”

This is the exasperated cri de coeur at the end of Chief Justice John Roberts’ concurring opinion in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade.  It’s also a pretty good metaphor for the frustration of a center-right majority of Americans caught between two increasingly doctrinaire extremes in our polarized political moment.

Roberts joined the five other conservative justices in upholding a Mississippi statute that barred abortion after fifteen weeks except for medical emergencies or severe fetal abnormalities.  Thus he would have overruled what the Court has termed Roe’s “central holding” that states must permit abortion before a fetus is viable outside the womb, generally thought to be about 24 weeks under current medical technology.  In moving the abortion cut-off line, in states that opt to impose one at all, up by nine weeks, he would have brought the law in those states more into line with that in most Western European countries – which in every other context liberals like to call “the civilized world” but which restrict abortion after twelve to fourteen weeks.  His opinion, like the majority opinion, thus would have largely ended our shameful status as the late-term abortion capital of the world, in a tiny rogue’s gallery with such dystopias as Vietnam, China and North Korea and only five other nations that permit elective abortions after twenty weeks.

What he was not willing to do, though – at least not yet – was to fully and formally overrule Roe “all the way down to the studs.”  Rather, in keeping with the basic first-year of law school rule that courts should generally base their decisions on the narrowest grounds “necessary to resolve the case at hand,” he would have jettisoned the viability rule while “leav[ing] for another day whether to reject any right to an abortion at all.”  He was “not sure,” he acknowledged, “that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks.”

Nonetheless, what is most striking about the Roberts opinion in historical political context is how boldly conservative it would have seemed until just about ten minutes ago.  In overruling Roe in all but name, and allowing states to ban the most grisly and morally offensive abortions, it would have been hailed as a great victory for the right-to-life movement.  And, while liberals may now be showing the Chief Justice a “strange new respect,” had he gotten four more votes for his opinion and thus written for the majority there would be the same apoplexy and rending of garments on the left as there is now, with Roberts denounced as an enslaver of women and calls for his assassination found to not be in violation of Twitter and Facebook community standards.

Let me lay my own ideological cards on the table.  Like Roberts, I assume, I’m with Roe herself, Norma McCorvey, who after first becoming a born-again anti-abortion activist moved back towards the center and said she was in “the mushy middle” on abortion.  Polls, when you drill down beyond the superficial “most Americans are pro-choice” claim of the left (or the wishful thinking “no, they’re really pro-life” claim of the right), suggest we are at least a strong plurality if not an absolute majority of the public.  We are appalled by late-term and most mid-term abortions (which constitute only about nine percent of all abortions but which, in something of a bait-and-switch, have been understandably stressed by the right-to-life side in opposing all abortions).  We don’t like abortion even in the first trimester, though; we like the “rare” in Bill Clinton’s “safe, legal and rare” formulation that has long since been purged from his party’s platform.  And we’re particularly put off by even early abortions for self-indulgent and materialist reasons like career advancement.

But we also understand the wrenching circumstances, particularly for younger and less affluent women, that often make it their least awful option.  (Even in these cases many of us also support the “crisis pregnancy centers” loathed by the left which provide such women with a genuine choice.)

For 50 years under Roe American abortion jurisprudence has been far to the left of this center-right consensus reflected in the laws of Western Europe and the slightly more liberal Mississippi law (!) upheld in Dobbs.  For much of that time a Court dominated by Republican appointees had an opportunity to align with this consensus and isolate the militantly pro-abortion cultural left, but Justices such as Anthony Kennedy, David Souter and Sandra Day O’Connor declined to do so.  In Dobbs it had the same opportunity, but instead leapfrogged the consensus and may have set itself, and the Republican Party, up as the outlier against majority opinion.  While, given the extremism and incompetence of the Biden Admini­stration on a host of other issues, this probably won’t significantly impede the expected Red Wave this year, in the longer run (and perhaps as early as 2024), Dobbs, like January 6, could be an albatross for the GOP and the right.  The shame is that, by joining Roberts the Court majority could still have effectively overruled Roe while turning this millstone into a strength.

Not that their action isn’t understandable, though.  The failure of earlier Republican justices to rein in the radicalism of Roe engendered a sense of betrayal that hardened attitudes on the right and set the stage for Dobbs.  And conservatives have been further provoked as the left has grown even more radical in the last few years – abandoning “safe, legal and rare” for “shout your abortion;” passing virtual infanticide laws in blue states which do not merely “codify Roe” but effectively extend it to the moment of birth; and, most recently, countenancing (or worse) an unprecedented breach of Supreme Court confidentiality, and then nonchalantly responding to the attempted assassination of a justice.  Without these “pro-choice” provocations the Roberts approach might have carried the day in Dobbs.  But ironically the left instead “released the whirlwind,” as Chuck Schumer might put it, and will now “pay the price.”  The problem for the right, though, is that it may pay the price too.

Defenders of the majority opinion may reasonably counter that all of the foregoing, like Roe itself ironically, is all about policy and politics but ignores the law.  Roe was egregiously bad law from its inception and thus must be thrown out in toto, they would say, and as to the former they are clearly correct.  It is ludicrous, as Justice Samuel Alito persuasively argues in the majority opinion, to suggest that the right to abortion was “deeply rooted in this Nation’s history and tradition” – as required to establish that a right is inherent in the Due Process Clause of the Fourteenth Amendment even though it is not enumerated in the Constitution’s text – when it was a crime in three-quarters of the states when the Fourteenth Amendment was ratified in 1868, and in all states when Roe was decided in 1973.  Even Justice Ruth Bader Ginsburg famously criticized Roe’s reasoning, and liberal Yale Law School Professor John Hart Ely wrote at the time that it was “not constitutional law and gives almost no sense of an obligation to try to be.”

Further, Alito contends, Roe cannot be saved under ordinary principles of stare decisis, and by striking down the viability rule Roberts acknowledges that it cannot be saved in toto.  Alito correctly notes that Roberts does not spell out a detailed legal theory for nonetheless retaining any part of it.  But I can see an argument that the combination of stare decisis and the 50-year history of legalized abortion under Roe, albeit illegitimately imposed and insufficient to save the ruling in toto, is sufficient to have created a very limited right to early term abortion (in, say, the first 6 to 12 weeks), and to thus bar statutes that ban all abortion from the moment of conception.

How far that vestige of an initially illegitimate constitutional rule should apply, or whether it should apply at all, I honestly don't know, and I don’t think the Chief Justice does either.  He might have ultimately ruled against such a limited right, but he thinks the Court should have made that ruling in a case allowing thoughtful consideration of that issue rather than a case concerning a far more radical application of Roe to a 15-week-old fetus.  That is Judicial Decision-Making 101 and a big part of the reason why federal courts require an actual “case or controversy” for decision and eschew advisory opinions on matters not before them.  By leaving for another day the question of whether Roe survives at all, Roberts would have still effectively gutted it in a decision that would have commanded far broader public support.