Good Friday Morning! Except for the PAC 12, which is losing both USC and UCLA to the Big 10 conference starting in 2024. A wild development in college athletics. The UCLA statement talked about providing a “larger platform” for student-athletes. That’s code: “we need a larger stage, so our athletes score larger NIL deals.” As always with college athletics, follow the money.
This week, I’ll cover the Dobbs opinion and where the political football of abortion moves next. First, I wanted to hit some other noteworthy headlines before moving forward.
- Kennedy v Bremerton School District: A 6-3 Supreme Court ruled in favor of a coach who prayed at midfield before games. While that was the headline, the real story is that the Supreme Court finally struck down the much-maligned Lemon Test, which came from a 1971 case, Lemon v Kurtzman. Under the Lemon test, things like graveyard crosses, nativity scenes, public prayer, and more got removed from the public square because they failed the Lemon Test. Courts ruled that these things ran afoul of the establishment clause. With Lemon gone and the Court using a “history and traditions” test, these kinds of cases should disappear from the legal system. It’ll be much more difficult for groups like the Freedom From Religion Foundation to target religious expression in the public square. I expect litigation in this area to dry up.
- Biden v. Texas: A 5-4 Supreme Court narrowly held that the Biden administration could end the Trump administration’s “Remain in Mexico” policy. Immigration has experienced a lot of dueling Executive Orders. Broadly speaking, I agree with Roberts, who wrote for Kavanaugh and the three liberals. There’s a technical argument over who is correct (the majority or dissents) in interpreting one of the statutes. However, I largely believe a President has the power to rescind previous Executive Orders at will. A new President is not beholden to a previous President’s executive orders.
- West Virginia v. EPA: A 6-3 Supreme Court embraced the “Majority Questions” doctrine and overruled an expanded EPA rule. Long story short, if the EPA wants to pass sweeping new regulations (in this case, it would have effectively banned coal), it needs Congressional support. Congress has to pass legislation that grants the EPA that authority. The Major Questions doctrine essentially states “the idea that if Congress wants to give an administrative agency the power to make ‘decisions of vast economic and political significance,’ it must say so clearly.”
Combine this week with the previous week, where I was writing about gun rights, the Free Exercise, and more, and it was quite the end of the term for the Supreme Court. Free Exercise was expanded, gun rights expanded, the Lemon Test was finally killed, administrative state curbed, and Roe/Casey terminated. As a conservative attorney and dues-paying member of the Federalist Society, that’s one of the best Supreme Court terms I can ever remember.
And broadly speaking, the Biden administration’s victory in Biden v. Texas places all the immigration mess directly on them. Legally speaking, they had to fight the orders around that policy in the courts. Politically, I doubt they wanted to win it. I’ll have links to more on the Court below. Let’s jump into Dobbs.
Where you can find me this week
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[7/1/2022] Paying for abortions vs paid maternity leave — Companies tell us what they believe – Conservative Institute
[6/27/2022] Supreme Court shows bravery under fire in ending Roe and Casey – Conservative Institute
Dobbs and the end of Roe/Casey + what’s next?
By now, you know the result of the Dobbs v. Jacksons Women’s Health Organization. The two primary cases that established an abortion right in America, Roe v. Wade and Planned Parenthood v. Casey, were overturned. The Court expressly returned the issue of abortion to the states and Congress to debate.
I’ll walk through the highlights of the majority opinion and the dissent and then go through some political reactions (specifically some proposals from Democrats).
The Majority Opinion
The first question I got about the majority was: did the majority opinion change from the Alito draft? The answer is yes; it’s much better than the draft. When the leaked draft opinion appeared, there were no concurrences or dissents for it to include. The Dobbs majority opinion is a tour-de-force in which Alito responds to every criticism and dismantles the dissent.
The majority opinion is powerful because it sets out to do two things with Roe and Casey. First, it examines both cases on their own terms and dismantles the logic in both. The weaknesses, wrong facts, and more are brought into the spotlight. Alito was unsparring in taking the cases apart on their own terms. Second, Roe and Casey get forced to stand up under case law where the Supreme Court has traditionally recognized new rights. Alito wrote:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
The abortion right falls under Substantive Due Process, part of the 14th Amendment. In previous cases, the Supreme Court held that for new rights to come from Substantive Due Process, they have to be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Neither Roe nor Casey pass the history and tradition prong. That’s not a controversial statement: the dissent, as Alito points out, cedes this point. The only argument the dissent proffers on the historical view is faux-mocking of the exploration of the history of abortion in America. It’s intellectually weak, and Alito made them pay for that point.
Alito brilliantly weaves liberal legal scholars throughout his argument. The most brilliant section was when Alito turned stare decisis on its head against the liberals — pointing on that they were calling for a version of stare decisis that didn’t exist in American law, and by ignoring the history and traditions test, they were harming past case law.
I could highlight countless points in Alito’s opinion to cover an entire newsletter issue. But I’ll end with this observation: the replacement for Roe and Casey. The answer is “rational basis review.” The key passage:
We must now decide what standard will govern if state abortion regulations undergo constitutional challenge and whether the law before us satisfies the appropriate standard.
Under our precedents, rational-basis review is the appropriate standard for such challenges. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.
It follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.”
A rational-basis review means that if someone sues a state for its abortion regulations, lower courts must apply a “rational basis review” to those standards. Scrutiny traditionally comes in three tiers: Strict scrutiny, intermediate scrutiny, and rational basis.
I had a law professor joke that strict scrutiny means the government always loses. If you’ve got a right and the government is trying to infringe it and is faced with strict scrutiny, then the government loses most of the time. No one can define intermediate scrutiny easily. But rational-basis review means the government wins all the time. If a government can identify any rational basis for legislation, courts will let it stand if it doesn’t touch the Constitution.
What does that mean for new abortion regulations? States can almost pass whatever they want. The usual caveats are they can’t violate other rights like speech or other things. But if it’s just regulating or banning abortion, states can do that, and the courts won’t touch it.
There isn’t much to say about the dissent. I’m not being glib. The dissent is characterized by ceding the legal arguments to Alito, arguing policy, and presenting a “parade of horribles.” There are three critical weaknesses to the dissent aside from this.
First, they present a strawman version of Roe/Casey. There is no difference between Roe and Casey in the dissent’s world. Both Roe and Casey upheld the right to abortion, and there’s little else the dissent thinks we should know. This point is utter hogwash, and Alito points this out. The Casey decision gutted everything in Roe. Casey tore down the entire house and built something new but said the same house still existed. It’s a strawman presentation, and they create a fake reality.
It’s intellectually dishonest framing. Combine that with the dissent ceding the history argument, and they have a failed opinion.
Second, they put all their eggs into a “parade of horribles” basket. The dissent spends considerable time talking about how awful states that want to ban abortion could become after Roe and Casey are gone. It’s exceptionally one-sided, and Alito points out the dissent ignores the other side of the debate that argues that abortion is killing an unborn life.
Finally, the dissent relies heavily on the notion that overturning Roe means every other Due Process right necessarily falls: gay marriage, interracial marriage, contraception, privacy, etc. You’ve no doubt read journalists cover this key point. There’s no evidence of that, and the majority opinion rejects it.
Many people point to Thomas’s concurrence where he says the Court should relook at its substantive due process cases. But that’s nothing new either. Thomas wants to end Substantive Due Process and shift the Court towards examining the Privileges and Immunities Clause (for an example of the various arguments around this, see this older Volokh post on the Second Amendment). Long story short, it’s a hobby horse for Thomas, and he’s the only one on the Supreme Court pushing for this view.
I’m skipping over the various concurrence, including the Roberts concurrence. There’s not much to say about them. It is crucial to think about what is next.
First, as I mentioned above, the rational basis review being the new standard means states will pass a ton of restrictions around abortion. I don’t see any of them getting struck down unless they impact other rights in the Constitution.
I saw a federal judge block Florida’s 15-week abortion ban. I have no idea what that judge could be smoking, but there’s no way that ruling stands up. It’s impossible for an order to say they’re blocking a law nearly identical to the one in Dobbs. These flare-ups with judicial activists could continue to occur, but appeals courts should slap them down.
Second, Democrats are proposing a litany of things that won’t happen. I know Biden has discussed executive actions/orders concerning abortion. Still, I can’t fathom anything he could do. With things like the Hyde Amendment in place, and no ability (or desire) for Democrats to vote through pro-abortion legislation through Congress, most of this is hot air.
Some Democrats have requested that the federal government open abortion clinics on federal lands. This policy has multiple problems, and the Biden White House opposes this measure. First, using federal money to open abortion clinics runs afoul of the Hyde Amendment in government spending bills. No one can use federal dollars for abortions. Second, opening clinics on federal lands delivers scenarios where states arrest the doctors of those facilities after they leave those federal lands (which the Biden administration cites as a critical issue).
A counter to the Hyde Amendment argument is that the federal government could lease federal land to abortion providers. Then, the government would only be leasing the land, not providing abortions. But suppose a lease contains restrictions on who can rent it, and providing abortions is a vital part of the lease. In that case, this seems like a distinction without a difference. The leases would only get granted in states for the express goal of providing abortion access, which can be seen as a Hyde Amendment violation.
Third and last point: companies paying for people to get abortions is an interesting development. They are free to do that, of course. But when a company is willing to pay for abortions but has the bare minimum on maternity leave, it’s declared what it values: workers on the line, not supporting women or families.
Take Dick’s Sporting Goods. Their CEO announced a loud pro-abortion policy on LinkedIn, and they’ll pay $4,000 for employees to go out of state to get an abortion. Compare that to what employees say about the maternity leave policy at Dick’s on Glassdoor. One former employee said it was the “bare minimum,” and another said, “Paternity leave does not exist.”
Liberal groups claim that 54,000 women experience discrimination each year for taking maternity leave. Statistically, 23% of US companies offer paid maternity leave. If you’re offering paid abortions but not paid maternity leave, that’s a strong statement of what you value as a company. It’s not women.
I’d look for Republicans to respond to this with paid maternity and paternity leave legislation soon. I suspect red-state conservatives will also look to expand other family services too.
Links of the week
Roe’s Demise: What does it mean—and what’s next? – James R. Copland, City Journal
An Originalist Victory: The Supreme Court’s Dobbs ruling is a tremendous success for the constitutional theory around which conservatives rallied for nearly half a century. – J. Joel Alicea, City Journal
Roe v Wade Overturned: A Stain Erased – National Review
Democrats’ Abortion Views Are Far Too Radical To Benefit From The Post-Roe Political Reality – Mollie Hemingway, The Federalist
Restoring the Founders’ right to bear arms – Joseph Greenlee, SCOTUSBlog
A minor impact on gun laws but a potentially momentous shift in constitutional method – Randy Barnett, SCOTUSBlog
Supreme Court Gives Biden Administration a (Temporary?) Win on Immigration with Final Decision of Term – Johnathan Adler, Volokh Conspiracy
China’s Killer Doctors: How the PRC’s lucrative transplant industry kills donors by removing their organs – Jacob Lavee and Matthew P. Robertson, Tablet Magazine
The Biggest Disruption in the History of American Education: For many students, physical school wasn’t replaced with Zoom. Rather, school closures meant no school—literally none at all. – Meira Levinson and Daniel Markovits, The Atlantic
Twitter Thread(s) of the week
Satire of the week
In 6-3 Vote, Supreme Court Overturns All Matrix Sequels – Babylon Bee
Thanks for reading!