The mifepristone cases - set for argument in March 2024 - could block more than half of abortions in the United States.
Robert Tsai and Mary Ziegler, in a powerful new essay, note that the
Dobbs v. Jackson Women's Health majority claimed to empower voters and legislatures. But their "rush to do as much as possible, to take the entire federal judiciary
off the field of action when it comes to abortion politics, suggests a
movement faction that understands it possesses an anomalous power of
indefinite duration." Although neither party briefed the issue the Alito majority opinion dismisses the Fourteenth Amendment equal protection principle as not historically grounded. Tsai and Ziegler thus see the overturn of Roe and Planned Parenthood v. Casey as a product of "movement judges":
Dobbs presents a historical narrative that
relies exclusively upon scholars aligned with the antiabortion
movement, erasing the complexities of that history and the extent of its
contestation — while denying that the decision is doing any such thing.
Justice Alito's majority opinion suggests that the judiciary is withdrawing from the fight:
The people of the various States may evaluate those interests differently. In some States, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an "unborn human being." Miss. Code Ann. § 41–41–191(4)(b). Our Nation's historical understanding of ordered liberty does not prevent the people's elected representatives from deciding how abortion should be regulated.
The Supreme Court majority declared
"[i]t is time to heed the Constitution and return
the issue of abortion to the people’s elected representatives." “The permissibility of abortion, and the
limitations, upon it, are to be resolved like most important questions in our
democracy: by citizens trying to persuade one another and then voting.” But returning the issue to untrammeled state legislative whim will entangle the courts more deeply than ever.
Ziegler and Tsai recognize a deeper truth:
In Alito’s account, the only justification for nineteenth-century abortion laws was the one supplied by movement organizations: “a sincere belief that abortion kills a human being.”
That incontestable, religiously held belief, sometimes as in Mississippi embedded in statute, will - in fact - keep the federal judiciary in the furnace room of abortion politics. Alito's statement in Dobbs that the court is returning the issue to the voters guarantees that. Alito's opinion grounds itself in 19th century history when no safe and effective means of abortion existed. Post Dobbs there is to be no balancing of privacy, women's autonomy, and the lives of the unborn.
As Ziegler points out in today's New York Times the repeatedly amended 1873 Comstock Act poses an obstacle to elective abortion that requires no legislation - only prosecutorial willingness to deploy it. Ziegler notes that "it doesn't have any exceptions - it applies at conception. It's any abortion, full stop." The Fifth Circuit Court of Appeals while modestly narrowing Kacsmaryk's order observes that
the [Comstock] Act requires that the defendant "knowingly
uses the mails for the mailing" of anything declared by the Act "to
be nonmailable." 18 U.S.C. § 1461. A
defendant could satisfy this mens rea
requirement by mailing mifepristone and knowing it is for producing abortion.
The statute does not require anything more.
In March the issue will be back in the Justices' laps when they hear the Alliance for Hippocratic Medicine cases regarding Mefistoprole, the first of the two drug abortion protocol which is now the method by which most abortions are effected.
A superficial reading of Dobbs envisions a state by state choice. So Alabama's Attorney General threatens prosecution of anyone who aids an Alabama woman to obtain an out of state abortion while New Jersey affirms the right in a new statute. The Yellowhammer Fund case puts that conflict on the road to the high court.
The Department of Justice Office of Legal Counsel in a December 2022 memorandum to the Postal Service has argued that a century of acquiescence by Courts, Congress, and Executive has narrowly construed the Comstock Act. The OLC opines that the Act "does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully."
But the rubber will meet the road in the Hippocratic Alliance cases next month. Not only could the Supreme Court uproot the FDA's 23 year old approval of the drug as safe and effective, but could also declare - as Adrian Vermeule argues - that because the natural law concurs with the plain language of 18 USC 1461, 1462 - the Comstock Act now bars shipping of the abortifacient drug either in the mails or by common carrier ~ regardless of the laws of the destination state or territory.
The issue of fetal personhood is presented in statutes - like Mississippi's - and more pressingly in the Dobbs friend of the court brief filed by Catholic natural lawyers John Finnis and Robert George. Finnis - a colleague of Amy Barrett at Notre Dame - was Neil Gorsuch's doctoral mentor at Oxford. That rationale could lead to upholding the decisions below overturning, and in the Circuit narrowing the intrusion on the FDA's two decade history of gradual expansion of the licit use of abortifacient drugs.
The Alliance for Hippocratic Medicine argues that emergency rooms are flooded with complications caused by medication abortions. But key studies relied upon by Judge Kacsmaryk are now of dubious utility because scientific publisher SAGE has retracted them as methodologically flawed. The withdrawal of the SAGE studies should undermine the standing claim of the anti-abortion physicians who are the nominal plaintiffs in the Mifepristone challenge. If the majority - fearing negative public reaction in a Presidential year - looks for an off-ramp Article III standing is the leading candidate.
- GWC 2/18/24
D. Dobbs as a Movement Decision
By the time the Supreme Court took up Dobbs, the movement faction
within the institution already comprised a significant bloc. It no longer
needed any support from anyone who might prefer to act in a
preservationist fashion, much less anyone who might fret that the open
repudiation of a constitutional right cherished by millions of women
might cause political problems for the party that had appointed them.
Authored by Justice Alito and joined by Thomas, Kavanaugh, Gorsuch,
and Barrett, Dobbs bears all the hallmarks of a movement opinion.
First,
its fusion of originalism and traditionalism revives an approach seen as
incompatible with modern rights jurisprudence and one that is likely to yield outcomes favored by most conservatives.273 In this respect, the
methodology is set up to yield outcomes that appear principled if, in
fact, the Court one day eliminates some or all substantive due process
cases that have grown out of Griswold — as some movement figures like
Justice Thomas have urged.274 Further conservative activism and the
already receptive views of movement jurists may produce more radical
changes in future substantive due process jurisprudence.275 By
embracing a version of Glucksburg’s formulation for interpreting the
Constitution rather than those found in cases like Griswold, Casey,
Lawrence, or Obergefell, Dobbs aids traditionalist social movements at the
expense of progressive movements.276
Second, the ruling embraces a great deal of conservative movement
rhetoric. Beyond movement jurists’ righteous depiction and defense of
the “unborn,”277 Dobbs itself recites a litany of other popular
antiabortion arguments: from the claims that Roe distorted other areas
of the law278 and that supporters of abortion rights harbor eugenic
aims279 to the argument that Roe is to blame for the general polarization
of American politics.280 These have long been activists’ complaints about
Roe. Many are empirically dubious, yet they have gained currency
through repeated deployment in the political and legal domains as part of the “politics of repudiation” to weaken social support for abortion
rights.2
Third, the sweep and timing of Dobbs hint that it is the work of
movement jurists. There was no pressing need for the Court to hear a
case on fifteen-week abortion bans and no circuit split about their
constitutionality — indeed, very few states had introduced such laws in
the first place.282 And when the Court agreed to hear Dobbs, the State of
Mississippi had not pressed the Court to reverse Roe.
283 The State
changed its litigation position after the Court’s composition changed —
and almost certainly in response to the rise of the movement bloc.284
Dobbs, in a word, dismantled Roe on a timeline that was advantageous to
the antiabortion movement yet was plainly damaging to the Court and
the Republican party.285
The Court also catered to the antiabortion movement by deciding
more than was necessary to justify the reversal of Roe, much less resolve
the case. Neither the petitioners nor the respondents had briefed the
question of whether the Equal Protection Clause justified a right to choose abortion.286 Nevertheless, the Court reached out to reject this
claim, suggesting that it was foreclosed by precedent.287
The rush to do as much as possible, to take the entire federal judiciary
off the field of action when it comes to abortion politics, suggests a
movement faction that understands it possesses an anomalous power of
indefinite duration.
Fourth, the Court’s uses of history perpetuated a grassroots version
of the past.288 The majority suggested that the right to abortion could
not be deeply rooted in the nation’s history and tradition because
“abortion had long been a crime in every single State.”289 To support its
narrative, the Court relied exclusively on a trio of scholars whose only
historical work addressed the problems with Roe itself, scholars who
held key roles in grassroots pro-life groups or attended events on
reversing Roe hosted by leading antiabortion organizations.290
The Court all but ignored the prevailing scholarly consensus on
abortion — that a quickening distinction and changes in scientific knowledge had long shaped law and culture around abortion — not even
acknowledging that the history of pre-quickening abortion was
contested.291 Despite proclaiming the irrelevance of legislative intent,
the Court also whitewashed the history behind abortion regulations.292
Scholars who study the physicians who campaigned to criminalize
abortion in the nineteenth century paint a complex picture of their aims,
one that included beliefs about fetal life, resentment of Catholic
immigrants, and retrograde views about the proper roles of women.293
Faced with this historical evidence, Alito’s response was simple
incredulity.294 “Are we to believe,” he wrote, “that the hundreds of
lawmakers whose votes were needed to enact these laws were motivated
by hostility to Catholics and women?”295 In Alito’s account, the only
justification for nineteenth-century abortion laws was the one supplied
by movement organizations: “a sincere belief that abortion kills a human
being.”296
This democratic-moral presentation of the community’s now legitimate power to regulate women’s bodies wiped out any lingering
memory of Roe’s early construction of an individual’s domain to enjoy
privacy and consult expertise or Casey’s fragile balancing of communal
and individual interests.297
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