Dobbs Central: The Law, the Facts, and the Politics

EPPC is maintaining this page as a repository of the best resources on Dobbs v. Jackson Women’s Health Organization, and we will update it regularly while the case is pending before the Supreme Court.

Law

The Court can’t avoid the question of whether to overturn Roe v. Wade and Planned Parenthood v. Casey.

• “Two Obstacles to (Merely) Chipping Away at Roe in Dobbs,” Sherif Girgis, SSRN, August 2021
  
  Summary: It is impossible to uphold Mississippi’s Gestational Age Act while Roe and Casey remain in place. Attempting to uphold the law without fully reversing those precedents would rest on groundless reasoning, even more vague than Casey itself, or logic that entrenches some sort of abortion right. Such a ruling would either exacerbate the Court’s reputation for politicized reasoning, ensure that abortion continues returning to the Court’s docket in the form of increasingly aggressive pro-life laws, or make it difficult for the Court to chip away at Casey and Roe later.

• Roe v. Wade needs to be overruled, Ed Whelan, National Review, July 2021
• “There is no middle ground in the Mississippi abortion case. The court must overrule Roe,” Sherif Girgis, Washington Post, October 2021

Against the stare decisis argument for Roe and Casey

• Chief Justice Roberts, Stare Decisis, and Dobbs, Ed Whelan, National Review

• “‘Shameless Acts’ in Colorado: Abuse of Scholarship in Constitutional Cases,” John Finnis, Academic Questions, Fall 1994
• “Back to the future of abortion law: Roe‘s rejection of America’s history and traditions,” John Keown, Issues in Law & Medicine, Summer 2006
• Abortion, Doctors and the Law: Some Aspects of the Legal Regulation of Abortion in England from 1803 to 1982, by John Keown, Cambridge University Press, 1988
• Dispelling the Myths of Abortion History, Joseph Dellapenna
• “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?” Joshua J. Craddock, Harvard Journal of Law & Public Policy, Spring 2017
• Brief of amici curiae in Dobbs, John M. Finnis & Robert P. George, July 2021
• “Indictability of Early Abortion c. 1868,” John M. Finnis & Robert P. George, SSRN, October 2021
• “An enhanced amicus brief in Dobbs,“ John M. Finnis, SSRN, November 2021
• “Addressing the ‘originalist’ argument for abortion,” John M. Finnis & Robert P. George, Newsweek, November 2021

Roe and Casey are unworkable and fail all other criteria for stare decisis

• Chief Justice Roberts, Stare Decisis, and Dobbs, Ed Whelan, National Review
• Opinion in Memphis Center for Reproductive Health v. Slatery, Judge Amul Thapar, September 2021
• Brief of amici curiae in Dobbs, Ethics and Public Policy Center
• “The Gordian Knot of Abortion Jurisprudence,” Philip D. Williamson, the Federalist Society, November 2021

Judicial restraint supports overruling Roe and Casey

• Chief Justice Roberts, Judicial Restraint, and Dobbs, Ed Whelan, National Review

There is no other argument for a right to elective abortion

The Equal Protection Clause argument for a constitutional right to elective abortion fails

• “Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights,” by Erika Bachiochi, Harvard Journal of Law & Public Policy, Summer 2011
• “A Putative Right in Search of a Constitutional Justification: Understanding Planned Parenthood v. Casey‘s Equality Rationale and How It Undermines Women’s Equality,” Erika Bachiochi, Quinnipiac Law Review, 2017
• What Roe v. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision, chapter by Michael Stokes Paulsen, pp. 204-211, New York University Press
• “Abortion as an Instrument of Eugenics,” Michael Stokes Paulsen, Harvard Law Review, June 2021
• “The Worst Constitutional Decision of All Time,” Michael Stokes Paulsen, Notre Dame Law Review, 2003 (see especially footnote 35)

Unborn human beings should be considered ‘persons’ under the Fourteenth Amendment

Politics

This is the best available moment to reverse Roe and Casey

There is not sufficient support for nuking the filibuster and expanding the size of the Supreme Court, and political conditions are as good as we might ever expect

• “Fighting for Life,” Ramesh Ponnuru, National Review, September 2021
• “Pro-Lifers Needn’t Fear a Post-Roe Abortion-Rights Backlash,” Ramesh Ponnuru, Bloomberg Opinion, May 2021

Most Americans don’t support the status quo created by Roe

• “Do Americans Really Support Roe v. Wade?” Alexandra DeSanctis, National Review, September 2019
• “Recycled Roe v. Wade Polls Continue to Mislead,” Michael J. New, National Review, May 2021
• Plurality of likely voters in the U.S. supports the Texas Heartbeat Act, Rasmussen Reports poll, September 2021

Abortion-rights supporters’ public campaign to pressure the Court won’t succeed

• “Noah Feldman Indulges in Brett Kavanaugh Fan Fiction on Dobbs,” Josh Blackman, “The Volokh Conspiracy,” August 2021
• “Chief Justice Roberts’s Long, Longer, and Longest Games,” Josh Blackman, “The Volokh Conspiracy,” August 2021
• Justice Kavanaugh should not cave to liberal pressure on Dobbs, Ed Whelan, National Review, August 2021
• The abortion-rights movement avoids reality of fetal heartbeats, Alexandra DeSanctis, National Review, September 2021
• A response to Ruth Marcus on pressuring Justice Kavanaugh, Ed Whelan, National Review, September 2021
• “Conservative justices, ignore all the empty threats about court-packing,” Henry Olsen, Washington Post, October 2021

U.S. abortion law is extreme compared to the rest of the world

• “Washington Post Misleads on Abortion Law around the World,“ Alexandra DeSanctis, National Review, September 2021

Texas Heartbeat Act & Dobbs

• “Supreme Court Gets It Right on Texas Abortion Law,” The Editors, National Review, September 2021

Conservative Legal Movement

Dobbs is a make-or-break moment for conservatives

• “Roe Must Go,” Robert P. George, First Things, July 2021
• “Roe Will Go,” Robert P. George, First Things, October 2021
• “Did the conservative legal movement succeed? That all depends on whether the Supreme Court overrules Roe v. Wade,” by Edwin Meese III, Washington Post, November 2021