Legal Review: Dobbs and the Holdings of Roe and Casey

Before the Supreme Court this term is the question of whether all pre-viability bans on abortion are unconstitutional. In Dobbs v. Jackson Women's Health, the Court must address this question in light of its previous holdings in Roe v. Wade and Planned Parenthood v. Casey. Shortly after oral argument in December 2021, law professor Richard Re encouraged the Court to adopt a gradualist approach, making room for the possibility that the justices could uphold both Mississippi's prohibition on abortions before 15-weeks gestation and its prior precedents in Roe and Casey. Law professor Eric Claeys has written a forthcoming article for the Georgetown Journal of Law and Public Policy in which he takes a deep dive into the abortion precedents, concluding that the Court must either reaffirm or overturn those prior rulings.

These two distinguished scholars joined us to discuss the argument, the stakes, and more.

Featuring:

Prof. Eric Claeys, George Mason University Antonin Scalia Law School

Prof. Richard Re, University of Virginia School of Law

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

[brucebutler]

This critique of Roe v. Wade incorrectly state's the premise of Roe was that women have a constitutional right to abortion. This was Roe's conclusion. The structure of the opinion was to state the conclusion and then prove its validity. The premise was that numerous provisions in law, including constitutional law, protect as private intensely personal matters such as control over one's body. Proportional justice, which requires similar treatment of similar circumstances, justifies treating government interference with that control as trenching upon a personal liberty interest. The conclusion was Texas' asserted public interest supporting government regulation was without precedent. The Court proceeded to invent a secular public interest in potential life to preserve governmental intervention.

[soccer]

If the court was interested in a minimalist approach there would be no need to even hear the case. Clearly roberts did not want to take the case which makes me thing the conservatives believe they have a majority for a major ruling. Plus in June medical even Roberta explicitly abandoned the idea that courts could balance interests the way you are proposing so he seems to have ties his own hands in that regard.

[catsaresocute]

Assuming this discussion isn't just you trying to argue out how to best take womans autonomy away, I', d love to ask questions.
For example, many abortions happen later then possible, because states make it so hard for cilinics to operate that appointment slots take time. Would this mean that states then would have to actually enable woman to get an early appointment?

[soccer]

Kagan and sotomayor should resign and run for office if they want to impose their left wing social views on the country. Can’t stand them, they’re so dishonest.