Ed Whelan <> Unsubscribe10:39 AM (28 minutes ago)
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From NRO’s Bench Memos:

Infra-DIG Diversion Gambit in Dobbs


September 23, 2021 11:32 AM

Infra dig (from the Latin infra dignitatem, meaning beneath one’s dignity) is an apt description of the anemic suggestion by the respondent abortionists in their merits brief in Dobbs v. Jackson Women’s Health Organization that the Court dismiss as improvidently granted—or DIG, in the Court’s jargon—the state of Mississippi’s certiorari petition.

Let’s put things in context:

1. When the Court granted certiorari in May, it specifically did so “limited to Question 1 presented by the [state’s] petition.” That Question 1 reads: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” (Emphasis added.)

Supreme Court Rule 14.1(a) expressly provides that “The statement of any question presented is deemed to comprise every subsidiary question fairly included therein.” The question whether “all pre-viability prohibitions on elective abortions are unconstitutional” necessarily implicates the question of what the proper constitutional standard is, which in turn “fairly include[s]” the questions whether Roe v. Wade and Planned Parenthood v. Casey are faithful to that standard, and, if they are not, whether they should be overturned.

Indeed, given Casey’s embrace of “the central holding of Roe” that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability”—“[r]egardless of whether exceptions are made for particular circumstances”—it is difficult to understand how anyone would fail to recognize that the question “Whether all pre-viability prohibitions on elective abortions are unconstitutional” presents at bottom the question whether Roe and Casey should be overturned. (The issue would be very different if Question 1 were limited to “Whether all pre-viability prohibitions on elective abortions are impermissible under Roe and Casey.”)

Respondents’ own argument—the one argument that I think they have right—that there are “no half-measures” available in Dobbs between overturning Roe and Casey, on the one hand, and applying and affirming them to invalidate Mississippi’s law, on the other, proves the point. The idea that the justices who voted to grant certiorari on Question 1 after many months of deliberation somehow did not understand what Question 1 entailed (even as they denied certiorari on the narrower questions that Mississippi’s petition presented) is ludicrous.

That is why the Court’s grant of certiorari on this question was widely and immediately understood to tee up Roe and Casey for overruling.

That is why the same-day New York Times article on the grant of certiorari was titled “Supreme Court to Hear Abortion Case Challenging Roe v. Wade” and prominently highlighted supporters of abortion rights who denounced the grant as “signaling a willingness to revisit Roe” (NYT’s summary) and as setting up “a test case to overturn Roe.”

That is why SCOTUSblog reported the same day that the case “could upend the Supreme Court’s landmark decisions in Roe v. Wade and Planned Parenthood v. Casey.”

That is why the Los Angeles Times editorial board stated the same day that the “enormously important” question in Dobbs meant that “There are basically two ways for the court to go: gut Roe vs. Wade or reaffirm it.”

That is why NARAL issued a same-day press release that declared that “There is no path for the Supreme Court to uphold Mississippi’s abortion ban without overturning Roe’s core holding.”

That is why an NBC News analysis the very next day stated that the certiorari “is a signal that the court is ready to overturn Roe v. Wade” and that Dobbs “lunges straight at [Roe’s] heart.”

Et cetera, et cetera.

2. To be sure, Mississippi argued in its petition that “the questions presented in this petition do not require the Court to overturn Roe and Casey” (emphasis added) but “merely … to reconcile a conflict in its own precedents.” But Mississippi went on to argue that if it would lose under Roe and Casey—if, that is, “the Court determines that it cannot reconcile Roe and Casey with other precedents or scientific advancements showing a compelling state interest in fetal life far earlier in pregnancy than those cases contemplate”—then the Court “should not retain erroneous precedent” (i.e., should overturn Roe and Casey).

The respondents complain that Mississippi “mentioned the notion [of overturning Roe and Casey] only in a threadbare footnote.” But that complaint ducks the fundamental point that the question is “fairly included” in the question on which the Court granted certiorari (and thus need not have been mentioned at all). And the complaint is also wrong, as the certiorari petition argued at length (see especially pp. 14-20) against the soundness of Roe and Casey. E.g.:

Roe’s viability line is arbitrary, constantly moves as medical knowledge increases, and fails to honor the reality that states have substantial interests of their own beginning “from the outset of the pregnancy.

The Court should grant the petition, hold that it is illogical to impose a “rigid line allowing state regulation after viability but prohibiting it before viability,” and uphold the Gestational Age Act.

[T]he Court should grant review and reject “viability” as the bright line for determining when a state may legislate to advance its substantial interests in health, safety, and dignity.

Roe’s viability rule is outdated.

In sum, the viability rule was created outside the ordinary crucible of litigation, failed to take account of the state’s accepted interest in maternal health and fetal pain, is increasingly out of step with other areas of the law, rejects science and common sense, and is shaky precedent at best. The Court should revisit it.

3. In City of San Francisco v. Sheehan (2015), the Court dismissed as improvidently granted a question on which the parties’ merits briefs were not in dispute. In so doing, the Court explained that the question “would benefit from briefing and an adversary presentation.”

At the risk of severe understatement, it is plain that no such concern is present here. Dozens of merits briefs, by the parties and their amici, have now been filed on both sides of the question whether Roe and Casey should be overruled.

In sum, there is no conceivable ground for DIGging Dobbs.

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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