Vindicating Cassandra: A Comment on Dobbs v. Jackson Women's Health Organization by Evan D. Bernick :: SSRN

Despite its radicalism the Dobbs v. Jackson Women's Health majority opinion by Samuel Alito doesn't close the door on the most decisive of issues.   Though Alito opinion flirts with the fetal personhood issue it does snot say that permitting, limiting, or banning abortion is beyond the national government's "enumerated powers".  

So we see today Lindsey Graham's fifteen week ban trial balloon bill.  The bipartisan Kaine/Murknowski Reproductive Freedom Act also lies on legislators desks.

Alito's opinion invited the states to step up - strongly suggesting that a state which embraced fetal personhood from the moment of conception would be free to do so.  Using the fiction of  federalism - states as laboratories - the five member majority encourages states to act.  This could yield state laws criminalizing the prescription and use of abortifacient drugs.  

So Congress, courts, and the FDA will be exploring the contested boundaries of national and state powers for the foreseeable future.

Though conservatives have long deplored "judicial activism" the Dobbs majority has opened floodgates. Evan Bernick develops the argument that Dobbs has settled little.  

- GWC September 14, 2022

Vindicating Cassandra: A Comment on Dobbs v. Jackson Women's Health Organization by Evan D. Bernick :: SSRN

Vindicating Cassandra: A Comment on Dobbs v. Jackson Women's Health Organization

44 Pages Posted: 13 Jul 2022 Last revised: 14 Sep 2022

Evan D. Bernick

Northern Illinois University - College of Law

Date Written: July 12, 2022

Abstract

In Dobbs v. Jackson Women’s Health Org., the Supreme Court of the United States overruled Roe v. Wade and held that the U.S. Constitution does not protect the right to terminate a pregnancy. The decision triggered abortion bans in 11 states. Nine other states have pre-Roe abortion bans on the books, and it’s unclear what will happen with them. It is certain that no Supreme Court decision has so quickly resulted in the prohibition of so much private conduct that was once afforded the highest constitutional protection.

Justice Samuel Alito’s opinion for the Court is shocking. Not just because of the circumstances in which a draft of the opinion was leaked to the public. Because of the impact Dobbs will have on the lives of millions; the new legal conflicts it’s already generating; and the uncertainty in which the Court’s reasoning leaves other rights—to marriage, to sexual intimacy, to contraception—once considered fundamental.

Still and all, Dobbs is but one victory for one side in an ongoing constitutional conflict. Justice Alito does his best to make it more than that, but the moment passes without decisive resolution. This Essay explains why and describes and criticizes Dobbs’s reasoning.

Part I summarizes the history of abortion in the United States. Part II describes and evaluates Roe’s reasoning; explains how Roe became a focal point of constitutional conflict; and maps the political and legal landscape prior to Dobbs. Part III summarizes the opinions in Dobbs. Part IV argues that Alito’s opinion for the Court fails to achieve three of its major goals. The opinion lands some blows on Roe but falls well short of demonstrating that it was (as Alito claims) “egregiously wrong.” Its own constitutional interpretation suffers from crippling flaws, with the result that it fails to show that the Constitution doesn’t protect abortion rights. And it not only fails to extricate the federal judiciary from abortion-related conflict but invites attacks on other rights.

Keywords: Constitutional Law, Constitutional Theory, Abortion, Reproductive Rights, Dobbs v. Jackson Women's Health Org., Roe v. Wade, Social Movements, Originalism

Suggested Citation:

Bernick, Evan D., Vindicating Cassandra: A Comment on Dobbs v. Jackson Women's Health Organization (July 12, 2022). Available at SSRN: https://ssrn.com/abstract=4161063 or http://dx.doi.org/10.2139/ssrn.4161063