We support our Publishers and Content Creators. You can view this story on their website by CLICKING HERE.

Clarke D. Forsythe, senior counsel at Americans United for Life, presented the following lecture for the Annual Christian Legal Society Richard Duncan Lecture at the University of Nebraska School of Law in Lincoln, Nebraska, on April 10, 2024.

A video version of the lecture is available here.

Dobbs vs. Jackson Women’s Health Organization is certainly the most discussed Supreme Court decision of the last two terms – at least politically. Legally, it has probably been read by very few and likely read in its entirety by even fewer. It’s likely a surprise to most people that Dobbs is about more than just abortion. Dobbs addressed stare decisis, substantive due process, federalism, and the proper institutional role of the Court, in detail, with considerable scholarship and historical integrity.

If you read Supreme Court decisions regularly, as many of you do, you’ll often see the Justices refer to “settled” doctrine, law, principles, or rules, as a premise for starting an opinion. But what does this refer to?

It’s a discrete reference to the common law maxim, stare decisis et quieta non movere, which means “stand by the decisions and don’t disturb what’s settled” (or settled points). The doctrine, the maxim, is not just stare decisis; it’s not just standing with the decisions or standing with the latest thing decided. Settlement of the law is the heart of the common law maxim. In fact, I would say, it’s the purpose of the common law maxim and the doctrine of stare decisis.

It is important for courts to settle the law, to settle rights and interests, and to see that they are settled. Imagine common law courts before the age of statutes and our constitutional text, ratified in 1788. They often conflicted on their rulings and holdings. It’s important for courts to settle the law so that rights and interests are settled. We see that, of course, today. When there is a split in the circuits, it increases the likelihood that the Supreme Court is going to take a case. If you start with settlement as the purpose of the doctrine, it may work, in fact, to preserve precedent, or at least raise the question ‘Why is this precedent unsettled, and how can it be settled?’

So, for example, is Marbury vs. Madison settled? Is Brown vs. Board of Education settled? Was Roe v. Wade settled? And is Dobbs settled today? If you look at settlement and the modern factors that the Court uses in stare decisis, it helps to answer those questions. And I would argue that Dobbs was necessary because of the tragic errors of Roe – the inherent defects that were written into the decision originally in January 1973, that made Roe permanently unsettled.

My book, Abuse of Discretion: The Inside Story of Roe v. Wade, was cited in the majority opinion in Dobbs and is based on the personal papers of 8 of the 9 Justices who voted in Roe vs. Wade.) (Chief Justice Warren Burger’s are still under seal but I understand they’re going to be released to the public next year.) Those papers, which are available to the public at the Library of Congress and other collections around the country, tell a completely different history of the run-up to the decision, of the two years of deliberations in 1971 and 1972 before the decision was released. They tell a completely different history than you get from the face of the decision or that the public has heard before. And so, I commend those papers, and my book, to your attention.

There were several fatal defects written into the Roe decision from the very beginning. For example, when the court originally took Roe and its companion case, Doe vs. Bolton from Georgia, in April of 1971, they did not take the cases to discuss abortion or to decide the abortion issue. They took the cases to decide the application of Younger vs. Harris. Younger vs. Harris was about state court criminal defendants taking their cases from state court into federal court. At the time, Younger v. Harris was a controversial decision, at least within the Supreme Court. It was a decision about federalism. It was re-argued three times before it was finally decided in February 1971, and several weeks later it led to the taking of Roe and Doe to decide the application of Younger vs. Harris because Roe and Doe had a similar procedural scenario.

But there was no trial record and no evidentiary hearing whatsoever in Roe or Doe on the question of abortion. And if you recognize that the court took the cases to decide Younger vs. Harris, there was no need for an evidentiary record on abortion, because it was a procedural case, a jurisdictional case, and wouldn’t have needed any evidentiary record. So that makes sense if the Court’s focus was Younger vs. Harris.

However, a crisis erupted in the Court in September 1971 when Justice Hugo Black and Justice John Marshall Harlan, II, both retired within the span of a week due to serious chronic health problems. Black died a week later, and there was a national funeral in his honor. Justice Harlan retired and died at the end of December 1971. That reduced the number of Justices on the Court to 7, and it flipped the balance of the Court to a temporary majority of 4-3 – a temporary majority that wanted to sweep away the abortion laws before President Nixon could fill those vacancies, which he did with the appointments of Justice Lewis Powell and Justice William Rehnquist in January of 1972.

By that time, the 4-3 majority had already scheduled, heard and voted on Eisenstadt vs. Baird (holding a right to utilize contraceptives for unmarried couples protected by substantive due process) in November 1971, and heard and voted on Roe v. Wade and Doe v. Bolton in December 1971. The oral argument was devoid of any constitutional analysis because they were burdened by jurisdiction and procedural questions. You can go to Oyez.org and read the original transcript or hear the original audio, 4 hours of it, because the two cases were argued for an hour each back to back in December 1971 and then re-argued back to back for an hour each before the full Court in October of 1972.

So, for the purposes of abortion, it was terrible case selection. There were 20-22 other cases on abortion in the federal courts, so they could have taken a better case with some kind of minimal evidentiary hearing and factual evidence. But because they were bent on rushing to decide these cases before Nixon could fill the vacancies, they decided to use Roe and Doe. But when they took Roe and Doe, they had two cases with no factual evidence whatsoever.

The “v-word”, viability, wasn’t mentioned once in all four hours of argument. The original drafts through 1971 and 1972 focused on 12 weeks, the end of the first trimester, as the limit to the abortion right. But only after the second round of arguments—in which viability was never prompted by any party or amicus as the line to draw—did the Justices lobby behind the scenes between themselves as to what line they were going to draw, and they opted for the viability rule.

If you’ve read Roe, you know that virtually half of it is legal history. From 410 U.S. 130 to 160, it’s all about legal history. Where did that come from? It was Justice Blackman’s own research, or information that interest group briefs filed in the Supreme Court for the first time in those cases. But it was quickly repudiated, and Justice Blackman dropped any defense of his history by the Webster decision in 1989. And the reasoning really is a simple ipse dixit. The Court said “we believe the right to privacy is broad enough to encompass abortion.” That’s at 410 U.S. 152.

Nor was Roe based on precedent. In fact, Justice Blackman issued contradictory statements in his opinion about precedent. At 410 U.S. 152 and 153, Justice Blackman cited a string of so-called privacy cases going back to Pierce and Meyer, for the ipsi dixit that the right of privacy is “broad enough to encompass the decision whether or not to terminate a pregnancy.” That’s basically the rationale. But just 6 pages later at 410 U.S. 159, Justice Blackman acknowledged that a woman “carries an embryo and later a fetus” and that “situation therefore is inherently different from marital intimacy or bedroom possession of obscene material or marriage and procreation or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer, were respectively concerned.”

For 49 years, the Court ignored that contradiction about the precedential foundation of Roe until the Dobbs Court and its majority opinion emphasized it several times. It was entirely result-oriented. They decided to invalidate abortion laws, but then had to decide how to justify it and write it, which took them through 1972 and resulted in a re-argument.

The super-structure of the decision — the trimester system, deference to abortion providers, the viability rule — they were all based on a medical assumption that abortion is safer than childbirth. Where did this come from? Well, it was based, again, on Justice Blackman’s own research or interest group briefs filed in the Supreme Court for the first time, because there was no evidence on that. The Court later in Akron and later in Casey acknowledged that Roe was based on “assumptions.” There was no reliable data in 1971 or 72 to support that proposition. So Blackman simply cited numbers from Soviet block countries in the 1950s to justify that medical assumption.

And then, of course, it was a sweeping decision. Roe legalized abortion for any reason at any time through all 50 states. And you wonder whether, if the Court had stuck to the original drafts tagging the abortion right to the first 12 weeks, the end of the first trimester, it would have been more supported by public opinion, and more settled over the years.

Of course, the Court made itself the “national abortion control board” by taking control of the issue and of every regulation in every clinic from coast to coast. This obviously had a negative impact on the Court and on American politics and Supreme Court (and federal court) nominations.

By almost any objective measure, Roe was the most controversial Supreme Court decision of the 20th century, perhaps since Dred Scott. And that means that it was unsettled. And if precedent is unsettled, according to stare decisis, the Court has an obligation to reexamine it to decide how to settle the law.

Modern stare decisis doctrine is based on six primary factors the court has settled on over the decades in the 20th century. In addition to settlement, the Court regularly looks at whether a decision is wrongly decided or erroneous, whether the decision or the rule it establishes is workable, whether factual changes have occurred that have eroded the original decision, whether legal changes have occurred that have eroded the original decision, and whether there are substantial reliance interests to back up the original decision. But of course, since there was no factual or evidentiary record in Roe, it was impossible—there was no baseline—to determine that facts hadn’t changed since the original decision.

It’s interesting to compare Abraham Lincoln’s use of several stare decisis factors in criticizing the Dred Scott decision in 1857. Lincoln agreed that the Court’s decisions “on constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy for the country.”

But Lincoln criticized Dred Scott as erroneous. He criticized Dred Scott as made by a divided court, as he said, “dividing differently on different points.” And he criticized Dred Scott because it was based on erroneous historical evidence.

Dobbs decentralized power, Dobbs relinquished power, and it returned responsibility to elected officials and voters. It gave accountability to elected officials who are responsible to the voters at regularly scheduled elections. It was important for the Court to get out of the abortion-umpiring business. And the Court was right to send the issue back to the people and their elected representatives in the States.

However, Dobbs was limited in very important ways. First of all, it was limited by Roe’s definition of abortion. From Roe through Casey and beyond, the Court consistently defined the holding from Roe as the “right to terminate pregnancy.” Secondly, Dobbs was limited by what was overturned. The Court expressly said that Roe and Planned Parenthood v. Casey were overturned. Stare decisis itself limits Dobbs. If Dobbs is unsettled, even today as I think it’s fair to say, there will have to be legal and political events over the years that will ultimately settle it or not. Dobbs is limited by the distinction that Justice Blackman wrote into the Roe opinion at 159, which the Dobbs Court emphasized, that there is an “inherent difference” between abortion and all the prior substantive due process cases before and since Roe.

Justice Clarence Thomas’ solo concurrence, which has gotten a lot of attention, is also limited. Solo opinions don’t unsettle precedent by themselves. What he focused on in critiquing substantive due process was simply expressing criticism that scholars on all sides of the legal spectrum have mounted against substantive due process in the past decades.

And yet, Dobbs corrected the historical record. It demonstrated that our common law heritage protects life and did so from the earliest point in human development that science could prove the existence of life, including prenatally.

Another major outcome of the Dobbs decision which hasn’t been given much attention, is, I think, that Dobbs settles the question of constitutional personhood. The question of constitutional personhood – whether the 14th Amendment’s use of the term “person” encompasses the unborn child – has been urged on the Court since 1971 and the United States v. Vuitch decision, which is actually the first modern abortion decision that the Court looked at before Roe and Doe and decided in 1971. That question has been urged on the Court in virtually every abortion case since, thirty-three plus abortion cases since and including Roe, and up to Dobbs.

The issue of personhood has been raised in oral arguments twice before the Dobbs argument. And as you may know, in the Dobbs argument it was expressly raised by Justice Brett Kavanaugh in oral argument and the solicitor general for Mississippi expressly clarified that Mississippi was only asking the Court to overturn Roe on a federalist basis, not on a personhood basis. And I think it’s fairly clear that the Court unanimously rejected constitutional personhood as a basis for its holding in Dobbs. Obviously, the dissenters did. Obviously, Chief Justice Roberts did. 

And the five who join the majority opinion make what I count as 19 or 20 statements that are incompatible with Fourteenth Amendment personhood, including at least 6 or 7 in which the majority says they are returning the issue to the “people and their elected representatives.”

The first page of the Dobbs opinion says, “For the first 185 years after the adoption of our Constitution, each State was permitted to address this issue in accordance with the views of its citizens.” That’s counting from 1788 to 1973, with the implication that the Fourteenth Amendment had nothing to do to change the authority that the people had in their states to decide the issue in accordance with the view of its citizens.

It’s implausible to me that this Court would reverse course and say, “Well, we made a mistake in Dobbs, we’re not going to return it to the people and their elected representatives, we’re going to assume control of it, and instead of deciding whether abortion laws are too strict, we are now going to decide whether abortion laws are too loose.” That would be the practical effect of Fourteenth Amendment personhood. The Court meant to clearly, and I think definitively, return it to the people and their elected representatives. And they’re not going to change that, at least not this Court.

Dobbs is very much a decision about federalism. It’s very much a decision which reinforced federalism and reinforced the police power. And this has implications for other issues of law and bioethics besides abortion. Though I don’t think that this Court will revisit the prior decisions on substantive due process that it disavowed addressing, Dobbs certainly has implications for future decisions and future bioethical issues. Even with Roe in place between 1973 and 2022, human cloning could be regulated or prohibited by the states because the Court defined the right at stake in Roe consistently as “the right to terminate pregnancy.” That means Roe and Doe were limited to in-utero acts involving pregnancy. They did not address acts outside of pregnancy. And I think it would require a unique and unprecedented extension of substantive due process to create a right to use technology for asexual reproduction such as cloning. This majority signaled in Dobbs that it’s not going to expand substantive due process in that way. And it seems to me that that position which existed while Roe was in place was re-enforced by Dobbs. So Dobbs respects and preserves federalism, and I think the state’s police power.

Let me just give you four examples of bioethical issues that I think are centered in the states and in the state’s police power now.

In Vitro Fertilization. If you haven’t had a chance to read the Alabama Supreme Court’s decision back in February in LePage v. The Center for Reproductive Medicine, the court decided that IVF embryos – laboratory embryos – were protected as children within the state’s wrongful death of a minor act. If you’ve read the decision, you’ll see that it’s very much a state decision. It has no legal implications for any other state. But it was based on an evolution in judicial decisions in Alabama going back to 1970 or before. And it was based on an evolution of legislative decisions in Alabama going back some decades. And it was based on a state constitutional amendment which the people of Alabama had approved in the 2018 election. So it’s limited to Alabama. But of course, when you apply stare decisis, if you’ve read about the decision you know that it created an unsettling of the law in Alabama and the governor and the legislature turned around within a week and basically sought to overturn the decision through legislation.

Another example is elective procedures, drugs and devices to enhance mental, physical, or sexual function, that we are all bombarded with daily through all sources of media. “Elective,” meaning not therapeutic. These devices or drugs are not intended to cure disease, they’re not intended to cure medical abnormalities or problems. They are purely elective and designed to enhance physical, mental, or sexual function.

If these elective procedures are directly marketed to all of us, and circumvent the physician-patient relationship, then they require a heightened standard of informed consent because they are not designed to address the emergence of disease or medical and biological abnormalities. The states for decades have been in control of their own doctrine of informed consent, whether it’s judicial decisions going back to the 1950s or before, or legislative decisions by the states. Informed consent has always been a subject of the state’s police power. It would be well-advised to make these entrepreneurs and marketers and innovators who are developing these elective procedures and directly marketing them to all of us, to be subject to a heightened level of informed consent so that we as consumers know everything about the drugs and devices and their risks and what medical and statistical evidence supports the risks and benefits.

A third example would be in vitro gametogenesis. This is a version of IVF in which they can take a cell from our body, create egg and sperm, and each of us could create our own child through IVF that is basically 100% based on our DNA, with no contribution from any other individual. That’s coming down the pike. It may grow in prevalence in the years ahead. It is a form of IVG cloning, in a sense.

My fourth example is Elon Musk’s Neuralink brain chip, or brain implant, which you may have heard about. Now, this may have therapeutic implications. It may be implantable to reverse neurological disability and disfunction, but it also could have elective implications. It could be intended to enhance healthy brain or neurological function.

All of these are subject to the state authority, the state’s police power, and can be regulated or prohibited by the states, and I think the position is confirmed by the Dobbs decision.

Dobbs means that the Court has shifted abortion from the Court’s control to public sentiment. Whereas once the Court controlled the abortion issue, public sentiment controls the abortion issue today, state by state.

Ironically, it seems to me that Americans across the political spectrum don’t support majority rule. They are skeptical of majority rule, skeptical perhaps of the morality of majority rule. The irony in this question is that until the Declaration of Independence, the question was ‘why shouldn’t the majority rule?’ And the Declaration sought to answer that question, posing a proposition of human equality that led to the understanding that legitimate government rests on the consent of the governed, which leads to majority rule, and prevalence of the greater compared to the lesser.

If you’ve read the Federalist papers or other writings of the American Founders, they examined majority rule in depth. They were concerned about balancing minority rights with majority rule and preventing majority tyranny. Madison in Federalist #51 is an example of how the Founders understood that majorities can and do act unjustly. Despite that risk, they believed that there’s nowhere else that final decision-making authority can be legitimately placed in a republic of representative government. We can’t expect unanimity in a vast populous like ours, except in very small, cohesive groups. This is a consequence of political liberty. What’s the alternative to majority rule? Is it minority rule? Is it anarchy?

Unfortunately, in recent months, we’ve seen the breakdown of majority rule leading to chaos in Haiti, for example.

What body or instrument independent of the majority or of society itself should be a check on majority rule? Is it the rule of the one? Is it the rule of the few? The Founders clearly looked at this and they were concerned about remedies to prevent majority tyranny. So for example, Madison in Federalist #10, broke with the tradition established by Montesquieu, which was the political sense of the era, that the only viable republics could be small. But Madison in Federalist #10 said that no, in fact, extended republics, by bringing in more populists, more interests, and more factions, would better prevent majority tyranny.

And they built in constitutional limits on majority rule such as the electoral college. Super-majorities are required, not just a simple majority, to ratify constitutional amendments. And in various places the Founders built in a requirement of concurrent majorities, meaning that there must be a majority in the Senate, concurrently with a majority in the House, to pass legislation to present to the President. And that of course is reflected in state constitutions as well. But they also made the factual, practical observation that majorities are constantly shifting and changing, depending on what the issues are and according to the change in political and legal events.

Decades later, Abraham Lincoln built on what the Founders originally did to defend majority rule, to reinforce it during the 1850s, and even more during the Secession Crisis. Throughout the 1840s and 1850s, Lincoln was very much focused, devoting much of his time and treasure and resources to building political parties – first the Whig party and then the Republican party. He was intensely focused on understanding and shaping public sentiment. He deeply respected public sentiment in our republic, but he did not necessarily believe that public opinion established some final moral standard for all time. But he recognized and he respected public opinion because it is obviously powerful in a republic. After 1854 and the Kansas-Nebraska Act, which opened the western territories to slavery and repealed the compromise of 1820, he worked to create an enduring national anti-slavery majority and he believed that the Republican Party, which got up and running after 1854-1855, was the political vehicle to create that enduring national anti-slavery majority. Lincoln’s defense was that majorities and the opinions of the individuals composing them were capable of deliberate change, and the factors that changed majorities included new elections, shifting legislative coalitions, new political issues, and demographic changes  These changed majorities could provide a check on the potential of majority tyranny.

Dobbs decentralized and returned authority locally to our elected representatives, and the aftermath of Dobbs is up to you and me and the American people in every state.

Print