A quick comment on Chief Justice John Roberts’s concurrence in Dobbs. As many expected from oral argument (including me) and leaks of the deliberation in May, Chief Justice Roberts sought in vain for a middle ground that would uphold the Mississippi law banning abortion after fifteen weeks with certain exceptions, but that would not overrule the basic right to an abortion found in Roe and Casey. Roberts’s concurrence in the judgment stuck to his lonely compromise position. I hoped that Roberts might at least offer some basis for why a fifteen-week ban would be permissible without a wholesale review of Roe.
Unfortunately, this did not occur. At best, Roberts argued that fifteen weeks permitted sufficient time for an elective abortion, and that “judicial restraint” counseled that the Court should go no further. Completely lacking in this analysis was any consideration of what amount of time would or would not be deemed appropriate under the Constitution. The simple fact is that there is no good argument as a matter of constitutional law that any one of viability (per Casey), a trimester framework (per Roe), or quickening (when pre-modern law criminalized abortion), or some other framework should serve as the limiting time for a constitutional right. (Sherif Girgis pointed this out most eloquently in the run-up to Dobbs last year.) And in fact, Roberts’s own opinion discounting both viability and the trimester framework from Casey and Dobbs proves the point. If he is rejecting all potential points argued by others for setting the limit, he owed it to the Court and to the public to explain why his own limitation made sense.
This makes Roberts’s call for “judicial restraint” ring hollow. Adopting Roberts’s “compromise” position would only more completely submit abortion regulations to the whims of nine justices. At least Roe and Casey had a line of demarcation—Roberts would reject even that constitutional line without a replacement. If Dobbs were decided in that way, then each and every gestational limitation, and the growing restrictions at each level, would be subject to ongoing review by the Supreme Court. Next year we would hear a case on fourteen weeks, then twelve the year after that, and so on.
“It is better that all things be regulated by law, than left to be decided by judges,” counsels St. Thomas Aquinas, in part because “it is easier for man to see what is right, by taking many instances into consideration, than by considering one solitary fact.” As a constitutional principle, a rule had to be determined, and our system of government gives that role of constitutional line-drawing to the Supreme Court. The majority took one position and held that the policy decision would be left to the legislatures. The dissent (and the Roe and Casey decisions before them) withheld from legislatures that decision on the basis of an alleged right found in the text of the Constitution. I agree with the majority that the Constitution does not grant a right to abortion, but at least the dissent understood the need for a rule for lower courts and legislatures to apply.
Roberts would reject that legal thinking of Aquinas and others in the name of a faux-restraint. Instead, his “solution” would arrogate to the Court a broad and unlimited discretion on abortion policy. To invert and paraphrase the aphorism of G.K. Chesterton, “Justice, like art, consists in drawing the line somewhere.” Yet the arch-institutionalist finds it ever more difficult to do what his institution was created to do.
Jacob Neu