Christopher Rudge

On Dobbs v Jackson Women’s Health Organization (2022)

Overruling Roe and Casey

I’m very disappointed by the result of Dobbs v Jackson Women’s Health Organization. The Supreme Court of the United States has found that the Constitution does not confer a right to abortion and overruled Roe v Wade and Planned Parenthood of Southeastern Pennsylvania v Casey.1

One of my concerns is the treatment of precedent, particularly the account of reliance adopted in Casey (1992). The joint opinion of Justices O’Connor, Kennedy and Souter explained why the protection recognised in Roe should be retained, including by reference to the choices people had made in reliance on the availability of abortion. Those choices extended beyond particular pregnancies to the organisation of relationships and participation in economic and social life.2 The question of reliance is therefore also a question about the kinds of expectations the law should protect when a longstanding constitutional decision is reconsidered.

The majority in Dobbs gives those interests less weight, distinguishing them from the concrete reliance associated with property and contracts.3 I would contend that this approach gives insufficient protection to people whose lives have been organised around an existing legal entitlement, particularly when the consequences of its withdrawal will be borne by people who had no reason to expect that their reproductive choices would become subject to a different constitutional rule.

Quickening and the historical authorities

As for the historical reasoning, my concern is with the construction of the passages drawn from Sir Edward Coke, Sir Matthew Hale and William Blackstone. These authorities must be read by reference to the questions they addressed, the distinctions they employed and the forms in which their accounts of the law were expressed. A sentence extracted from a treatise may be an authoritative statement of law; however, its scope cannot always be determined independently of the discussion in which it appears.

‘Quickening’ refers to the pregnant person’s first perception of fetal movement. Its significance in this discussion is historical and legal, rather than a claim about the point at which fetal movement becomes detectable by modern imaging. In the historians’ brief filed in Dobbs, the American Historical Association and Organization of American Historians contend that early American common law did not criminalise consensual abortion before quickening.4 That account is a submission to the Court, rather than a conclusion the Court adopted, but it identifies a distinction that requires examination before apparently general language is treated as evidence of a prohibition extending throughout pregnancy.

Blackstone’s discussion of personal security expressly locates the legal beginning of life at the point at which an infant can stir in the womb. His ensuing example of abortion begins with a woman who is ‘quick with child’.5 The qualification is therefore part of the explanation of the legal category, as well as part of the example through which the category is illustrated, and must be considered when assessing the significance of its absence from another passage.

Elliptical writing and the scope of a rule

My concern is that some of these passages may have been written elliptically. A qualification stated in one place may be left implicit in another, especially where the writer assumes that the reader already understands the distinction being discussed. By ‘elliptical’, I mean that part of the proposition is supplied by its context, rather than repeated whenever the subject arises. Such writing must be examined before an omission is treated as a deliberate statement about the scope of the law.

Although their works contain detailed legal distinctions, the question is not resolved simply by describing these writers as precise or imprecise. Nor would I suggest that a treatise has no authority because its author was not deciding a case at the moment of writing. Rather, the difficulty concerns the extraction of a complete rule from a sentence that may have been intended to summarise one aspect of a larger discussion, without restating each of the qualifications on which that discussion depended.

In that respect, a reading directed principally to the extraction of a freestanding rule may give the omission of a word more significance than its context permits. Even where a passage records a judicial decision, the scope of the proposition must be assessed by reference to the facts and issue reported. A treatise statement, a compressed report of a prosecution and a proposition necessary to decide a contested case may each provide evidence of historical law; their respective forms nevertheless affect what can safely be inferred from the language in which that evidence is expressed.

Blackstone provides an illustration of this interpretive problem. In Book I, his example expressly refers to quickening; in Book IV’s discussion of homicide, he refers to killing a child in the womb without repeating that qualification.56 The difference does not establish that the second passage is elliptical, but it does require the two passages to be read together before the omission is treated as evidence of a broader prohibition. The inquiry must concern what the writer meant in the particular discussion, including what he may have taken as already understood.

The distinction between the death of the fetus and the death of the pregnant woman is also necessary. A rule imposing liability for the woman’s death following the administration of an abortifacient addresses an additional injury, with its own questions of causation and culpability. The majority relies on such a rule in its discussion of pre-quickening abortion.7 However, the scope of that rule and the scope of any separate abortion offence require examination: a proposition about homicide cannot simply be treated as an exhaustive statement of the circumstances in which abortion itself was criminal.

The report of Eleanor Beare’s prosecution

The prosecution of Eleanor Beare in 1732 raises a related question about the significance of an omission in a different form of historical writing. The majority relies on an account in the Gentleman’s Magazine as an example of punishment for abortion and draws attention to language in the report that does not mention quickening.7 Does the report identify the stage of pregnancy or distinguish the elements of the offence from the language used to condemn the conduct? And how much of the legal reasoning is preserved in a report intended for a general readership?

A contemporary magazine report may be valuable historical evidence. Its status as a magazine does not make its account unreliable, nor should it be assessed simply by asking whether it meets the standards of a modern authorised law report. The question is whether the details it preserves are sufficient to support the particular inference for which it is used, especially where silence about a qualification is being treated as evidence that the qualification had no legal significance.

In more general terms, the historical inquiry must distinguish moral disapproval, criminal prohibition and legal liberty. The principle that conduct is permitted unless prohibited provides a reason to examine the boundaries of any asserted prohibition, including the difference between conduct that was condemned and conduct for which criminal liability could be imposed. A description of abortion as morally objectionable cannot, without further analysis, settle the scope of the criminal law.

Of course, freedom from a criminal prohibition is different from a constitutional right preventing the legislature from introducing one. The absence of an offence does not by itself establish such a right. My objection to the historical reasoning is correspondingly limited: evidence that abortion was condemned or punished in some circumstances must be assessed by reference to those circumstances before it is used to characterise the historical position more generally.

There is also a limit to what this objection can achieve. The majority’s historical reasoning extends to nineteenth-century American legislation and the position at the ratification of the Fourteenth Amendment in 1868.8 A criticism of its reading of the English authorities therefore addresses part of the argument; it does not dispose of the separate questions about American statutory history or the place historical restrictions should occupy in the interpretation of constitutional liberty.

The consequences for clinical decisions

The dissent of Justices Breyer, Sotomayor and Kagan directs attention to the restrictions that may follow the withdrawal of constitutional protection. Under the majority’s approach, abortion legislation is subject to rational-basis review.9 That standard must be distinguished from an assessment of clinical reasonableness: the constitutional question does not simply ask whether a restriction produces the outcome a doctor would regard as medically appropriate.

Nevertheless, the consequences for clinical decision-making require analysis of the circumstances in which an exception can be invoked. A law may contain an exception for the preservation of life while leaving uncertainty about the point at which a doctor may intervene. How serious must the risk become, and must treatment be delayed while the patient’s condition deteriorates? And how will doctors assess those questions where the legal consequences of intervening may be substantial, but the medical consequences of waiting may be irreversible?

The protection of fetal life does not remove the need to examine those conflicts. The wording of each restriction and its exceptions will matter, as will the circumstances in which treatment is provided and the judgment required of the doctor. The result in Dobbs is dismaying in many ways; among its consequences is the prospect that decisions requiring urgent clinical judgment will also require an assessment of uncertain legal boundaries, at a time when neither the patient nor the doctor can afford to wait for those boundaries to be clarified.

  1. Dobbs v Jackson Women’s Health Organization, 597 US 215 (2022). See the official slip opinion, opinion of the Court, 5, 78–79. Pinpoints to Dobbs below refer to the separately numbered pages of the relevant slip opinion, rather than the PDF page count.
  2. Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 854–56 (1992), joint opinion of O’Connor, Kennedy and Souter JJ. See the judgment text.
  3. Dobbs, opinion of the Court, 63–66.
  4. Brief for the American Historical Association and Organization of American Historians as Amici Curiae Supporting Respondents, Dobbs v Jackson Women’s Health Organization, No 19-1392 (20 September 2021), 5–9, especially 6 n 2. Brief.
  5. William Blackstone, Commentaries on the Laws of England, bk I, ch 1, discussion of personal security. See the 1765 text transcribed by Project Gutenberg. This edition is identified separately from the seventh edition cited in Dobbs.
  6. William Blackstone, Commentaries on the Laws of England, bk IV, ch 14, discussion of murder, *198. Text transcribed by Yale’s Avalon Project.
  7. Dobbs, opinion of the Court, 18–19, including nn 26–28, citing 2 Gentleman’s Magazine 931–32 (August 1732) and Matthew Hale, Historia Placitorum Coronæ, vol I, 429–30. The discussion here concerns the majority’s use of those sources.
  8. Dobbs, opinion of the Court, 23–25.
  9. Dobbs, opinion of the Court, 76–78; Breyer, Sotomayor and Kagan JJ, dissenting, 3.