Christopher Mills (Spero Law LLC; Charleston School of Law), Blake Davis (Wake Forest University - School of Law), & Richard Osborne (Regent University - School of Law) have posted Is Viability Dicta? (Regent University Law Review Pro Tempore (2022)) on SSRN. Here is the abstract:
For nearly half a century, no legal issue has sparked as much debate as abortion. But near-universal agreement has met one point: the viability rule announced by the Supreme Court in Roe v. Wade and reiterated in Planned Parenthood v. Casey is the core holding of the Court’s abortion jurisprudence. Yet at oral argument in Dobbs v. Jackson Women’s Health Organization, Chief Justice Roberts floated the theory that the viability rule was never a holding after all. Relying on the personal papers of Justice Blackmun, Roe’s author, Chief Justice Roberts claimed that Justice Blackmun “said that the viability line . . . actually was dicta.” Chief Justice Roberts went on to say that because the regulations in Roe and Casey did not “depend[] upon where viability was,” the Court did not “have to address the line-drawing at all” in those cases.
Whether the viability rule is a Supreme Court holding is of central importance to the Court’s resolution of Dobbs, which asks “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.” If the viability rule has been, for nearly 50 years, mere dicta, the Court could answer the question in Dobbs and dispose of the viability rule while claiming adherence to stare decisis. That route—which would presumably change the focus to whether abortion laws impose an “undue burden” generally—has its own difficulties, as Professor Sherif Girgis has explained. Presumably those difficulties are why all parties in Dobbs focused on the core issue of whether abortion is an unenumerated constitutional right, with the abortion providers (echoed by the United States) proclaiming that “there are no half-measures here.”
This Article, however, focuses on whether reading the viability rule as dicta is convincing in light of abortion jurisprudence over the last 50 years. Though Chief Justice Roberts and one scholar (Professor Randy Beck) have presented some arguments in favor of viewing the viability rule as dicta, especially in Roe, the near-universal view is that the viability rule is a core holding of the Court’s abortion jurisprudence. In a recent article, Professor Eric Claeys convincingly shows that under the Court’s overbreadth doctrine, at least 13 of the Supreme Court’s abortion decisions are premised on the viability rule, making it a necessary holding. This Article surveys additional evidence—including internal Court communications from Justice Blackmun’s papers, Roe and later precedents, Chief Justice Roberts’s own statements, and the lower courts’ abortion jurisprudence––all pointing to the same conclusion: the viability rule is not dicta.
If the viability rule is a holding, the Court in Dobbs cannot avoid its stare decisis force. As Chief Justice Roberts has elsewhere explained, “Stare decisis is a doctrine of preservation, not transformation.” According to the Chief Justice, the Court “cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” A narrow ruling in Dobbs that depends on reclassifying the viability rule as dicta would contradict the weight of federal abortion jurisprudence. On this understanding, the Court has no choice but to confront the ongoing validity of the viability rule.
Recommended.
