Is Viability Dicta?

Christopher Mills*, Blake Davis** & Richard Osborne***

Abstract

For nearly half a century, no legal issue has sparked as much debate as abortion. But near-universal agreement has reached 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 fifty 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 fifty 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 thirteen 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.

INTRODUCTION

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. Questioning Solicitor General Scott Stewart, the attorney for Mississippi, Chief Justice Roberts asked, “was viability an issue in [Roe]?”[1] He pointed out that viability “wasn’t briefed or argued” there.[2] 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.”[3] Chief Justice Roberts acknowledged that “Casey said that [viability] was the core principle or a central principle in Roe” but wondered whether “viability [was] at issue in Casey.”[4] Mississippi’s attorney agreed that viability was not “squarely at issue” in Roe or Casey but said it was “a little hard not to take the Court at its word when it emphasized [in Casey] that viability . . . is the central part of . . . Roe’s holding.[5] Chief Justice Roberts returned to the theme later in the argument, explaining Casey’s focus on viability on the ground that viability “was pretty much all that was left after they were done dealing with the rest of” Roe–i.e., its abandoned trimester framework.[6] Chief Justice Roberts said that because “the regulations in Casey” did not “depend[] upon where viability was,” the Court did not “have to address the line-drawing at all” in Roe or Casey.[7]

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.”[8] None of the parties in Dobbs, the federal government, or the various state amici view viability as anything but a holding.[9] 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.[10] 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 “[t]here are no half-measures here.”[11]

This Article focuses on whether reading the viability rule as dicta is convincing in light of abortion jurisprudence over the last 50 years. The initial question is how to distinguish between holdings and dicta, a question on which there is no “universal agreement.”[12] Still, several core principles are widely accepted. Language is “dicta” when judges “include a ‘witty opening paragraph, the background information on how the law developed,’ or ‘digressions speculating on how similar hypothetical cases might be resolved.’”[13] Put another way, dicta are “statement[s] in a judicial opinion that could have been deleted without seriously impairing the analytical foundations of the holding”; that is, they are “peripheral” and “may not have received the full and careful consideration of the court that uttered” them.[14]

As for what a “holding” is, one potential definition could be only what is strictly necessary to the decision.[15] But that definition would seem to mean that only the judgment line—“dismissed,” “affirmed,” “reversed”—is the holding. It would leave too great a distance between the Court’s definitions of “dicta” and “holding,” when the proper distinction between them “is a foundational feature of our law of precedent.”[16] And it ignores the purpose of judicial opinions, which is largely to set out the court’s ratio decidendi––“the rule that is logically implied by the stated reasons necessary to the resolution of the case on the facts before the appellate court and the legal arguments presented by the parties.”[17]

The Supreme Court itself has rejected this narrow view of a holding: “When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound.”[18] Put another way: “As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law.”[19] Of course, as Chief Justice Marshall famously said in Cohens v. Virginia,[20] “general expressions . . . are to be taken in connection with the case in which those expressions are used.”[21] But broad language, though understood by the context of the case, can still form a part of the Court’s holding.

This definition of a “holding” requires inclusion of a court’s ratio decidendi. The “rationale explaining the result” has long been a “sufficient condition” to establish a holding, a principle with “deep roots in judicial tradition.”[22] For instance, the Marks Rule, which assigns precedential value to the opinion that constitutes the narrowest ground in a fractured Supreme Court decision, exists in large part because of the need to establish the controlling ratio decidendi that constitutes part of a Court’s holding.[23] Courts apply many constitutional tests as holdings—much of criminal procedure and the tiers of scrutiny, for instance—even though the same result could presumably be reached without the tests.

With these principles in view, we turn to the main topic: the viability rule’s status. 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.[24] 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.

In Part I, we show that the Supreme Court has invariably treated Roe’s viability rule as the cornerstone of the Court’s abortion jurisprudence. The first trimester and viability lines were the central issues in the internal Court discussions preceding Roe, commanding far more attention than even the constitutional grounding of its right to abortion. The Court’s later opinions have reiterated the viability rule as, in the words of Casey, Roe’s “central holding.”[25] And Chief Justice Roberts’s own opinions, most notably June Medical, have echoed this understanding of the Court’s abortion jurisprudence. Other Justices too, even those opposed to Roe and Casey generally, have joined opinions like Gonzales v. Carhart that apply the viability rule. And no Justice post-Casey has suggested that the viability rule might not be binding after all. Had that been a plausible reading of the Court’s abortion decisions, it is unlikely that such a suggestion would have gone unsaid.

In Part II, we show that other federal courts have uniformly taken the Supreme Court at its word and applied the viability rule as the core holding of abortion jurisprudence. We were unable to find a single suggestion from any federal judge, at least since Casey, that viability might be dicta. In June Medical, Chief Justice Roberts applied stare decisis to reverse a lower court’s factual determination that a state’s hospital admitting privileges requirement for abortion providers passed muster under the viability rule.[26] It seems far-fetched to think that he would have affirmed the lower court’s decision had it disregarded the viability rule entirely as dicta. Given the Supreme Court’s repeated language classifying viability as its central holding, it is unsurprising that no court has taken this route.

Finally, in Part III, we respond to theories that Roe and Casey’s viability rule is nonetheless dicta. Though parts of these theories are not unreasonable, they ultimately fail to account for the Court’s own decisions and nearly fifty years of national application.

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.”[27] According to the Chief Justice, the Court “cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”[28] 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.

I. An Unbroken Line of Supreme Court Decisions Shows That the Viability Rule Is an Essential Part of Its Abortion Jurisprudence.

A. Roe treated viability as its holding.

In Roe v. Wade,[29] the Supreme Court considered a Texas law that proscribed all abortions, both pre- and post-viability, except those necessary to save the life of the mother.[30] Because the case arose on a motion to dismiss, the trial court had not engaged in any fact-finding.[31] With no record evidence available, the Court relied on the parties’ briefs and the Justices’ independent research.[32] For example, Justice Blackmun infamously spent several days conducting independent research at the Mayo Clinic, where he had served as general counsel two decades earlier.[33] Faced with this insufficient evidentiary record, the eventual majority opinion relied largely on unverifiable evidence and data.[34]

The Justices’ discussions surrounding the initial draft opinions confirm their uncertainty in choosing a line of demarcation for when a state’s interest in protecting unborn life begins. To begin to understand what the Court held in Roe, and whether Justice Blackmun and his colleagues considered the viability rule to be dicta, we start our analysis with these initial drafts of the Roe opinion. Of course, these drafts are not the Court’s actual opinion and have no binding weight,[35] but Chief Justice Roberts’s questioning in Dobbs suggests some relevance in informing our understanding of that eventual opinion.

Before the Court heard reargument in Roe, Justice Blackmun’s draft opinion made viability its “turning point” for “when state interests become compelling” and thereby permit “limitation[s] o[n] the abortion right.”[36] But after the case was reargued, Justice Blackmun’s draft instead suggested drawing the line for the State’s interest in regulating abortion at the end of the first trimester.[37] In the passage seemingly alluded to by Chief Justice Roberts, Justice Blackmun stated that the draft’s “present form . . . contains dictum,” and he observed that “in this area” of scientific uncertainty, “some dictum is indicated and not to be avoided.”[38] But Justice Blackmun did not say that the start of the State’s interest was dicta. Instead, in a new paragraph, Justice Blackmun emphasized that the chosen point would be an essential part of Roe’s holding: “I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.”[39]

In response, Justice Powell proposed “viability” as an alternative reference point for where the State’s interest in regulating abortions began.[40] As Chief Justice Roberts correctly pointed out at oral argument in Dobbs, neither party in Roe had argued viability.[41] Viability was an innovation suggested by Justice Powell, at the urging of his law clerk and based on a then-recent opinion by Judge Newman stating that “the state interest in protecting the life of a fetus capable of living outside the uterus could be . . . of more weight in the constitutional sense than the interest in preventing the abortion of a fetus that is not viable.”[42] Admittedly, Justice Powell added that “it is not essential that we express an opinion as to such a date”—i.e., when the State’s interest becomes compelling.[43] But the Court’s continued discussions show that the majority considered it an essential question necessary to a reasoned decision.

At first, Justice Blackmun wanted to stick with the first trimester, believing that using it as the cutoff would be “more likely to command a court” majority and more consistent with “medical statistics.”[44] But he reversed course in a later memo, stating that viability “has logical and biological justifications.”[45] He also said:

There is a practical aspect, too, for I am sure that there are many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them, or, indeed, has passed.[46]

The responses to Justice Blackmun confirm that the Justices’ internal references to “dicta” did not generally pertain to the Court’s choice of when the State’s interest became compelling. Far from being some secondary issue, that question was the central focus of the Justices’ exchange, consuming far more attention than the constitutional grounding of Roe’s new right to abortion.[47] In a critical memo, Justice Marshall suggested that the opinion emphasize both the first trimester and viability, arguing that it should state “explicitly” that “between the end of the first trimester and viability, state regulations directed at health and safety alone were permissible.”[48] Justice Brennan essentially agreed with Justice Marshall’s articulation of the relevant “‘cut-off’ point[s],” emphasizing that “our designation of such a ‘cut-off’ point should be articulated in such a way as to coincide with the reasons for” that point.[49]

Justice Stewart, on the other hand, said that “[o]ne of my concerns with your opinion as presently written is the specificity of its dictum—particularly in its fixing of the end of the first trimester as the critical point for valid state action.”[50] Justice Stewart “wonder[ed] about the desirability of the dicta being quite so inflexibly ‘legislative.’”[51] Justice Stewart wanted “to allow the States more latitude to make policy judgments between the two alternatives mentioned in your memorandum, and perhaps others.”[52] Despite Justice Stewart’s concerns, Justice Blackmun decided “to follow the lines suggested by [Justice] Brennan and [Justice Marshall].”[53] The first trimester and viability would be the crucial points.

Again, the Justices’ private views about a case do not control––what matters is what the Court says. And what the Court said in Roe is revealing, as it shows that viability was a central part of the Court’s rationale. The ultimate opinion in Roe featured a two-fold holding on when States could restrict abortion. Speaking for the Court, Justice Blackmun identified two “compelling point[s]” during pregnancy when the States’ “important and legitimate interest[s]” began.[54] For the “State’s important and legitimate interest in the health of the mother,” the “compelling point[]” begins “at approximately the end of the first trimester.”[55] And for the “State’s important and legitimate interest in potential life,” the compelling point starts at “viability.”[56] The Court based this conclusion on perceived “biological justifications,” namely that after viability “the fetus then presumably has the capability of meaningful life outside the mother’s womb.”[57] After viability, the Court explained, “[i]f the State is interested in protecting fetal life,” “it may go so far as to proscribe abortion” unless the mother’s life or health was endangered.[58] As for Justice Stewart, he abandoned a planned concurrence expressing hesitation with this framework, joining the Court’s opinion in full and writing a short statement about substantive due process.[59]

The Court made clear that the two-fold standard was its holding. The Court held that, “[m]easured against these standards,” the Texas law violated the right to an abortion that the Court recognized under the Due Process Clause of the Fourteenth Amendment.[60] If that reference to the Court’s new “standards” was not clear enough, the Court “summarized and repeated” Roe’s holding in a quasi-statutory form, complete with subsections. One subsection stated that “For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”[61]

The Court called this summarized form its “holding.”[62] This description is significant, as Roe had earlier distinguished the holdings and dicta of other abortion precedents. The Court’s opinion asserted that “most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law . . . . [T]heir reliance on . . . dictum . . . makes it now appear doubtful that abortion was ever firmly established as a common-law crime . . . .”[63] Whatever the validity of that assertion,[64] the Court’s discussion of the differences between dicta and holdings support the conclusion that the viability rule was part of Roe’s holding. In the three instances when the Court refers to “dictum” in Roe, it emphasizes each time that dictum from earlier abortion precedents should not be controlling in this context.[65] It strains credulity to suggest the same opinion that dismissed “reliance on . . . dictum” in abortion jurisprudence would describe viability as its “holding” if it meant for viability to be mere “dictum.” And as Professor Claeys points out, the result in Roe can be explained only by applying the viability rule as a holding.[66] The Court’s identification of a state interest “in protecting fetal life after viability” was essential to determining whether the Texas statute was preempted by Roe’s prima facie abortion right.[67]

The Court gave general effect to Roe’s holding in Doe v. Bolton[68]—issued on the same day as Roe. Doe made equally clear that Roe’s holding included the viability line. Relying on Roe, the Court in Doe held that a Georgia abortion regulation violated the right to an abortion because it “fails to exclude the first trimester.”[69] And Doe cites the very page of Roe that articulated the two “compelling points” in pregnancy—the first trimester and viability—to support its holding that the regulation violated the right to abortion recognized in Roe.[70] In other words, Doe cited Roe’s first-trimester framework as a binding precedent. And this is particularly significant, given that the Court in Roe made clear that both the trimester framework and viability rule were intertwined parts of its holding by stating them collectively in quasi-statutory form.[71]

Last, if Justice Blackmun’s personal pre-Roe papers provide a window into the Court’s thinking, his opinion in Webster v. Reproductive Health Services[72] does too. There, he identified “trimesters and viability” as “the critical elements of the Roe framework.”[73] He reiterated that “under the Roe framework the State, in order to promote its interest in potential human life, may regulate and even proscribe nontherapeutic abortions once the fetus becomes viable.”[74] Justice Blackmun “remain[ed] convinced, as six other Members of this Court [in Roe] were convinced, that the Roe framework, and the viability standard in particular, fairly, sensibly, and effectively functions to safeguard the constitutional liberties of pregnant women while recognizing and accommodating the State’s interest in potential human life.”[75] According to Justice Blackmun, setting constitutional standards “remains the special responsibility of this Court,” and “[i]n Roe, we discharged that responsibility as logic and science compelled”—and the “judgment in that case” should not “be abandoned.”[76]

Thus, to the extent that Chief Justice Roberts considers Justice Blackmun as Roe’s author to “ha[ve] some insight on the question” about the status of the viability rule,[77] Justice Blackmun seems to have understood the Court’s opinion in Roe the same way it was understood in the internal deliberations before Roe and applied in Roe and Doe. The viability rule was more than dicta. That rule was the central focus of the Court’s efforts, and the Court’s holdings cannot be understood except by reference to that rule.

B. The Court’s post-Roe decisions treated viability as a holding.

Even if there were some room to debate the contours of Roe’s holding right after the decision was rendered, subsequent decisions have made clear what the Court first articulated in Roe: viability is a holding. In the Supreme Court’s later abortion cases, the Court and litigants have repeatedly understood that the viability rule constitutes a holding.

Take Planned Parenthood of Central Missouri v. Danforth,[78] which involved a constitutional challenge to several provisions in a Missouri abortion statute. One provision defined “viability.”[79] Another provision prohibited “the use of saline amniocentesis, as a method or technique of abortion, after the first 12 weeks of pregnancy.”[80] Before the Court analyzed the constitutionality of these provisions, it laid out Roe’s holding. According to Danforth, Roe’s holding contained “three stages.”[81] During the first stage, which ends “approximately [at] the end of the first trimester,” the State cannot interfere with the woman’s right to abortion.[82] “After the first stage” and up to the point of viability, the State may regulate abortion “to preserve and protect maternal health.”[83] Finally, “for the stage subsequent to viability,” “the State may regulate abortion to protect the life of the fetus.”[84] Thus, according to Danforth, Roe’s viability line demarcated the point at which the State could regulate to protect the fetus’s life. Both parties, including the State of Missouri, acknowledged that Roe’s viability line controlled Danforth’s outcome.[85]

Nothing in Danforth suggests that Roe’s viability line was merely dicta. On the contrary, portions of Danforth’s holding turned directly on whether the regulation matched Roe’s viability line. First, regarding the Act’s viability definition, the Court lingered over when viability occurs[86] and concluded that the statutory definition “d[id] not conflict with what was . . . held in Roe.”[87] And when addressing saline amniocentesis abortions, the Court noticed that physicians conducted upwards of eighty percent of all post-first-trimester abortions using this particular method.[88] As a result, the regulation prohibited “the vast majority of abortions” before viability and was not reasonably related to maternal health—the sole exception to previability regulations.[89] Thus, in the “logical and anticipated corollary to Roe v. Wade,”[90] the Court reaffirmed Roe’s holding: States have diminished authority to regulate abortion before viability. Characterizing that rule as “dicta” would deprive Danforth’s reasoning of sense.

Not long after Danforth, abortion returned to the Court in Colautti v. Franklin.[91] There, abortionists challenged a Pennsylvania statute providing, among other things, that “if the fetus was determined to be viable, or if there was sufficient reason to believe that the fetus might be viable,” then the physician must exercise the same care as if the fetus were born alive.[92] The Court reiterated Roe’s holding: “Viability is the critical point.”[93] The Court explained that both Roe and Danforth had “stressed viability” and “recognized that differing legal consequences ensure upon the near and far sides of that point.”[94] And the Court ultimately held that the statute was void for vagueness because “it is uncertain whether the phrase ‘may be viable’ simply refers to viability, as that term has been defined in Roe.”[95] According to the Court, “[t]he crucial point is that ‘viable’ and ‘may be viable’ apparently refer to distinct conditions, and that one of these conditions differs in some indeterminate way from the definition of viability as set forth in Roe.”[96] Roe provided a viability rule from which no state could depart. Resultant legal consequences are the sine qua non of a holding. (Indeed, Justice White’s dissenting opinion and the parties also agreed that viability was the governing rule.[97])

Again, in Harris v. McRae,[98] the Court reaffirmed viability as part of Roe’s central holding. There, Medicaid recipients challenged the Hyde Amendment’s constitutionality because it “impinge[d] on the ‘liberty’ protected by” Roe.[99] The Hyde Amendment generally prohibits the use of federal Medicaid funds to reimburse abortion procedures.[100] According to the challengers, the Hyde Amendment restricted “medically necessary abortions,” which denied them their constitutional right to abortion.[101] The Court rejected that challenge because a woman’s constitutional right does not “confer” a “constitutional entitlement” to “financial resources.”[102] But the Court again reiterated the State’s “legitimate interests” in protecting “the health of the mother” and “potential human life,”[103] interests that “justify a criminal prohibition against abortions” after “viability.”[104]

In City of Akron v. Akron Center for Reproductive Health,[105] the Court reaffirmed the viability line as essential to Roe’s holding. There, abortion clinics challenged several abortion regulations, including regulations requiring (1) all post-first trimester abortions to be performed in a hospital; (2) parental notification and consent for unmarried minors; and (3) a 24-hour waiting period between a woman’s consent and the abortion procedure.[106] Akron presented the first reference to stare decisis about Roe, and the Court announced that it would “reaffirm” Roe.[107] The Court also emphasized that a “woman’s fundamental right” to have an abortion “must be considered against important state interests.”[108] One of those interests is the State’s “important and legitimate interest in protecting the potentiality of human life.”[109] The Court again explained that this interest “becomes compelling only at viability.”[110]

In dissent, Justice O’Connor agreed that Roe “chose the point of viability” as the crucial “point at which the state interest in potential life becomes compelling.”[111] She called this choice “no less arbitrary than choosing any point before viability or any point afterward,” explaining that as scientific advances improve the potential for fetal life outside the womb, “[t]he Roe framework . . . is clearly on a collision course with itself.”[112] Yet Justice O’Connor would reaffirm the viability rule as a member of Casey’s controlling plurality, and even her criticisms in Akron show that she, along with all other Justices, understood viability to be a holding. A few years before Casey, she would write that “viability remains the ‘critical point.’”[113]

C. Casey reaffirmed Roe’s viability line.

In Planned Parenthood of Southeastern Pennsylvania v. Casey,[114] the Court considered several Pennsylvania provisions that required (1) informed consent at least 24 hours before the abortion procedure; (2) parental consent (or judicial approval) for minors to obtain an abortion; and (3) a signed statement that the woman “has notified her husband of her intended abortion.”[115] Each applied throughout pregnancy, making no distinction between trimesters or with regard to fetal viability.[116]

In a controversial decision, the controlling plurality “reaffirm[ed]” what it called “Roe’s essential holding”—“the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.”[117] Notably, as in prior cases, both parties and the United States all agreed that Roe’s holding contained the viability rule.[118] The issue facing the Court was whether Roe should be overturned. And the Court understood Roe to hold that “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.”[119]

Under traditional principles of stare decisis, the Court felt compelled to reaffirm this “essential holding.” In “a less significant case,” the Court said, “stare decisis analysis could, and would, stop at [that] point.”[120] In the Court’s view, Roe had provided a workable rule, and “people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion.”[121]

Moreover, though “advances in neonatal care have advanced viability,” those advances did not change “Roe’s central holding.”[122] The plurality maintained that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”[123] So the Court explained that “viability” could thus “continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe’s factual underpinning has left its central holding obsolete.”[124]

After recounting all the cases since Roe that had also reaffirmed the viability rule as Roe’s “central holding,” the plurality concluded: “The sum of the precedential enquiry to this point shows Roe’s underpinnings unweakened in any way affecting its central holding.”[125] Accordingly, the Court’s holding reaffirmed that “the line should be drawn at viability” because “the central premise of those cases represents an unbroken commitment by this Court to the essential holding of Roe.”[126] And it was “that premise which we reaffirm today.”[127]

Casey did not, however, reaffirm the other holding of Roe—its trimester framework. According to the plurality in Casey, Roe’s “trimester framework” “d[id] not fulfill Roe’s own promise that the State has an interest in protecting fetal life.”[128] Under Roe’s trimester framework, any previability regulation protecting fetal life was unconstitutional.[129] Such a result was “unwarranted” because “[n]ot all burdens on the right” to abortion before viability “will be undue.”[130] To the Casey plurality, “the undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty.”[131] Revealingly, the plurality in Casey did not suggest that the trimester framework had been dicta; instead, it merely said (plausibly or not) that it had not been “part of the essential holding” or “central holding” in Roe.[132] The “essential” and “central” holding was, according to Casey, the viability rule.

After recounting all the cases since Roe that had also reaffirmed the viability rule as Roe’s “central holding,” the plurality concluded: “The sum of the precedential enquiry to this point shows Roe’s underpinnings unweakened in any way affecting its central holding.”[133] Accordingly, the Court’s holding reaffirmed that “the line should be drawn at viability” because “the central premise of those cases represents an unbroken commitment by this Court to the essential holding of Roe.”[134] And it was “that premise which we reaffirm today.”[135]

To be sure, the Pennsylvania laws did not turn on viability, as Chief Justice Roberts pointed out in Dobbs. But “viability was [still] at issue” in Casey.[136] The Court’s decision hinged on retention of the viability rule as the cornerstone of the Court’s abortion jurisprudence. Without viability—or by demoting it to dicta—Casey’s undue burden standard makes little sense. Casey justified its decision by explaining that “a state law is unconstitutional if and when it has the effect of ‘placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’”[137] A woman’s right to abortion free from undue burdens extended to only nonviable fetuses because “the plurality followed Roe[],” confirming “the State’s power to restrict abortions after fetal viability.”[138] Viability was the key. Reading it as dicta requires ignoring both the Court’s words and its judgment.

D. The Court's post-Casey decisions have continued to treat viability as Casey's (and Roe's) holding.

Since Casey reaffirmed the viability line as “Roe’s essential holding,” the Supreme Court has continued to emphasize that this holding is the cornerstone of its abortion jurisprudence. For example, Stenberg v. Carhart[139] involved a constitutional challenge to a Nebraska law that banned “partial birth abortion[s].”[140] At the outset, Justice Breyer made clear that the Court did not revisit Roe and Casey’s legal principles but applied them to that case.[141] And all three legal principles the Court reiterated turned on fetal viability. Those principles are: (1) “before viability,” a woman may choose to terminate her pregnancy; (2) “a law designed to further the State’s interest in fetal life . . . before viability” is unconstitutional if it unduly burdens women; and (3) after viability, the State may pursue its interest in fetal life by regulating or prohibiting abortion.[142]

Turning to the statute at issue, the Court in Stenberg noted that “the fact that Nebraska’s law applies both previability and postviability aggravates the constitutional problem presented,” for the “State’s interest in regulating abortion previability is considerably weaker than postviability.”[143] Only if viability is constitutionally significant and a part of Casey’s holding would this analysis make sense. Likewise, the Court’s invalidation of the Nebraska law depended on its conclusion that the law “place[d] an ‘undue burden’ upon a woman’s right to terminate her pregnancy before viability.”[144] No Justice who concurred or dissented intimated that Casey’s holding did not include the viability line.[145] Nor did either party to the case (including the United States as amicus).[146]

Shortly after Stenberg, Congress enacted the Partial-Birth Abortion Ban Act of 2003.[147] Like its Nebraska predecessor (and as its name suggests), the Act also prohibited partial-birth abortions.[148] Yet, unlike its Nebraska predecessor, the Act was “more precise in its coverage” and contained a maternal-health exception.[149] Just as in Stenberg, abortion providers challenged the Act’s constitutionality because, in their view, it imposed an undue burden on women seeking previability abortions.[150]

The Court’s analysis in Gonzales v. Carhart[151] began with a description of Casey’s “three holdings” (described above in Stenberg), which all turn on fetal viability.[152] The Court “assume[d] [Casey’s] principles for the purposes of this opinion,” but it recognized those principles “did not find support from all those who join[ed] the instant opinion.”[153] In other words, even those Justices who disagreed with Casey joined the Court’s opinion in Gonzales, understanding that, so long as Casey remains good law, its viability rule endures.[154] If “Casey’s principles” are not principles that bind the Court, Gonzales’s starting assumption is difficult to understand. According to the Court in Gonzales, Casey’s “three holdings [were] implicated” in this case because the “abortions affected by the Act’s regulations take place both previability and postviability.”[155] And under the Roe-Casey standard—that a law may not impose an undue burden on women before viability—the Court upheld the Act.[156] Gonzales was written by Justice Kennedy, one of the three authors of Casey’s plurality opinion.

In Whole Woman’s Health v. Hellerstedt,[157] the Court once again reiterated that the viability rule is the essential component of the Roe-Casey holding. The Court faced a challenge from Texas abortion providers who sought to invalidate a law requiring physicians to have admitting privileges at a nearby hospital to perform abortions.[158] In describing the Court’s abortion jurisprudence, the Court addressed the fundamental holdings from Roe and Casey: “[I]n Casey we discarded the trimester framework, and we now use ‘viability’ as the relevant point at which a State may begin limiting women’s access to abortion.”[159] The constitutional test, then, asks whether the “‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’”[160] Nor is the Court’s language mere window dressing. “Each [regulation] places a substantial obstacle in the path of women seeking a previability abortion,” and “each constitutes an undue burden on abortion access.”[161] In the Court’s view, the admitting-privileges requirement, alone, caused “half of Texas’ clinics” to close.[162] This regulation prevented a significant fraction of women from obtaining previability abortions.[163] And as in Stenberg, no litigant (or the United States as amicus) contended that Casey’s viability line was not controlling.[164]

Finally, just last year, Texas enacted a statute providing a private right of action against abortion providers, who perform an abortion after the fetus has a detectable heartbeat.[165] All the parties involved (including the United States) and the Fifth Circuit understood viability to be a holding—not dicta.[166]

E. Chief Justice Roberts himself has treated the viability rule as a holding.

Chief Justice Roberts has followed the Court in treating the viability rule as the central Roe-Casey holding. Not only has he joined cases like Gonzales that adopt this reading, he has said so himself. For instance, in his solo concurrence in June Medical Services LLC v. Russo,[167] Chief Justice Roberts explained his vote to uphold a Louisiana admitting privileges law relying, in large part, on Hellerstedt.[168] In following that precedent, Chief Justice Roberts explained that Hellerstedt applied the traditional rule from Casey: a “‘substantial burden in the path of women seeking a previability abortion’ . . . violate[s] the Due Process Clause of the Fourteenth Amendment.”[169]

Chief Justice Roberts then explained that under the Court’s precedents, “Casey provides the appropriate framework to analyze” abortion restrictions, and he applied that framework because “[n]either party has asked us to reassess the constitutional validity of that standard.”[170] “Casey reaffirmed” what Chief Justice Roberts called “the most central principle of Roe v. Wade,” that is, “a woman’s right to terminate her pregnancy before viability.”[171] And under the Marks Rule, despite the fractured nature of the Casey opinion, the Chief Justice made clear that this portion of the Casey opinion was controlling, not mere dicta.[172]

If any doubts remained that Chief Justice Roberts viewed the viability rule as binding, he dispelled those doubts throughout the rest of his June Medical concurrence. The Chief Justice reiterated Casey’s explanation that the “undue burden” standard “is a shorthand” for a conclusion that a regulation places “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”[173] Thus, under the Casey framework, as long as a State provides a “legitimate purpose,” the Chief Justice explained that “the only question for a Court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’”[174] To underscore the importance of the viability rule, the Chief Justice pointed out that “Casey repeats that ‘substantial obstacle’ standard no less than [fifteen] times,”[175] and Chief Justice Roberts himself repeated or cited the standard twenty-four times in his June Medical concurrence.[176]

Relying on the viability rule, as implemented through the substantial obstacle framework, the Chief Justice rejected the plurality’s position in June Medical and explained that “the discussion of benefits in [Hellerstedt] was not necessary to its holding.”[177] In other words, because the Roe-Casey viability line is the governing rule, anything beyond the viability line in Hellerstedt was dicta. Chief Justice Roberts’s opinion in June Medical thus aligns with the Court’s unwavering position: Roe and Casey held that the viability rule is the governing standard in the abortion context.

Even before joining the Supreme Court, Chief Justice Roberts understood that Roe’s “essential holding” included viability, which Casey reaffirmed. At his confirmation hearing, the Chief Justice stated that Casey “went through the various factors in stare decisis and reaffirmed the central holding of Roe while revisiting the trimester framework and substituting the undue burden standard.”[178] When asked whether Roe and Casey “fall into the category of super-stare decisis,”[179] Chief Justice Roberts said that “the Casey decision itself, which applied the principles of stare decisis to Roe v. Wade, is itself a precedent of the Court, entitled to respect under principles of stare decisis. . . . [Casey is] a precedent on whether or not to revisit the Roe v. Wade precedent. And under principles of stare decisis, that would be where any judge . . . would begin.”[180]

Other current Justices have agreed with the Chief Justice’s reading of the Court’s abortion precedents. Dissenting in June Medical, Justice Thomas wrote that “[d]espite the readily apparent illegitimacy of Roe, ‘the Court has doggedly adhered to its core holding again and again.’”[181] And Justice Thomas cited Casey as evidence that “the Court has repeatedly invoked stare decisis” to uphold Roe’s central holding.[182] In a separate June Medical dissent, Justice Alito (joined by Justices Kavanaugh and Gorsuch) wrote that “[u]nder our precedent, the critical question in this case is whether the challenged Louisiana law places a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”[183] Likewise, Justice Kavanaugh has written that when “the Court reaffirmed what it described as the ‘central holding’ of Roe,” it also “expressly rejected Roe’s trimester framework, and the Court expressly overruled two other important abortion precedents.”[184] And at his confirmation hearing, Justice Kavanaugh stated, “I understand the importance of the precedent set forth in Roe v. Wade. [Roe] held, of course, and [the Court] reaffirmed in Planned Parenthood v. Casey, that a woman has a constitutional right to obtain an abortion before viability.”[185]

Former Justices too have reached the same conclusion as Chief Justice Roberts. Justice Scalia, for example, observed that “the arbitrary viability test” was “central to Roe” and “retained[]” by the Court in Casey.[186] In his Stenberg dissent, Justice Kennedy (an author of Casey’s plurality opinion) likewise wrote that “Nebraska must obey the legal regime which has declared the right of the woman to have an abortion before viability.”[187]

Finally, it is worth noting what Chief Justice Roberts has not said. Of course, no Justice is under any obligation to write separate opinions setting forth their understanding of the law, but they—including the Chief Justice—often do.[188] And if the Chief Justice had thought that all abortion cases nationwide were being litigated under an incorrect legal standard, surely at some point in his tenure on the Court he would have found fit to say so. In those past sixteen and a half years, well over ten million abortions have been performed in this country.[189] Endless litigation has engulfed states, abortion providers, and the federal judiciary. And the Supreme Court has had no shortage of vehicles for Chief Justice Roberts to express his own understanding. In these circumstances, it seems far-fetched that the Chief Justice would leave unsaid a suggestion that would have reshaped the legal and practical landscape.

Thus, the weight of Supreme Court authority—from the Court’s internal deliberations during Roe to its decisions to the writings of individual Justices—strongly favors reading the viability rule to be a core holding of abortion jurisprudence.

II. Federal Courts Have Universally Considered the Viability Rule to Be a Holding.

Following the Supreme Court’s precedents—and, in recent years, the Chief Justice’s June Medical concurrence in particular—the lower federal courts have universally understood viability to be the central holding of the Court’s abortion jurisprudence. In the two years since the Chief Justice reaffirmed that Roe and Casey’s holdings included the viability rule, the lower federal courts applying the fractured June Medical decision have reached different conclusions about how the undue burden standard must be applied.[190] But every federal court has agreed that Roe and Casey mandate that some version of that standard is required under the viability rule.[191] In other words, all apply the viability rule. We could not find any post-Casey federal judicial opinion at any level suggesting that the viability rule is dicta.[192] Given that the Court applied stare decisis even to factual questions about the application of the viability rule to two different states’ hospital admitting requirements in June Medical,[193] it is not hard to imagine what sort of reaction a lower court opinion that wrote off viability as dicta would have received. Unsurprisingly, no court has made the attempt.

For instance, writing for the majority in a recent en banc Sixth Circuit decision, Judge Thapar applied the Chief Justice’s June Medical concurrence and explained that “the relevant legal standard” asks whether the law “place[s] a substantial obstacle in the path of a large fraction of women seeking an abortion of a nonviable fetus.”[194] The court thus focused on whether the law in question unduly burdened “women seeking previability abortions.”[195] The dissenters took no issue with the application of the viability rule because they agreed that the viability rule applied.[196] Indeed, the primary dissent said as much: “Casey tasks courts with determining whether the restriction unduly burdens a woman’s right to choose to terminate her pregnancy before viability.”[197] The dissenters disagreed over how severe a burden must be to count as “undue,” but they all agreed that whatever an undue burden may be, it is forbidden until viability.[198]

Practically all federal judicial opinions over the past five decades have agreed that Roe and Casey prohibit bans on abortions before viability. Even judges who consider Roe and Casey wrong have found no way around the viability rule. In his concurrence in Dobbs itself, Judge Ho said that while “[n]othing in the text or original understanding of the Constitution establishes a right to an abortion,” he agreed “that Casey prohibits any and all bans on previability abortions,” as “every other court to consider the issue” has concluded.[199] Judge Ho was “aware of no judicial opinion that reads Casey differently.”[200] Judge Thapar has explained that no pre-viability “restrictions are permissible under the Roe/Casey framework,” even though he believes that “Roe and Casey are wrong as a matter of constitutional text, structure, and history” and that the Court “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.”[201] Judge Carnes said that under Supreme Court precedent, “[t]he dispositive question is whether” a law “imposes an undue burden on a woman’s right to terminate a pre-viability pregnancy.”[202] Judge Niemeyer echoed this point: “[Casey] reaffirmed the ‘essential holding’ of Roe—that a woman has a constitutional right to ‘choose to have an abortion before viability and to obtain it without undue interference from the State.’”[203] And Judge Sutton acknowledged that the Supreme Court’s precedent “prohibits a State from imposing an ‘undue burden’ on a woman’s access to an abortion before fetal viability,”[204] even though he has called the continuous litigation over abortion “proof that federal judicial authority over the issue has not been good for the federal courts or for increased stability over this difficult area of law.”[205]

Likewise, in MKB Management Corp. v. Stenehjem[206]—a case involving a Nebraska heartbeat bill—the Eighth Circuit noted that “controlling Supreme Court precedent dictates the outcome in this case.”[207] Nebraska’s law “generally prohibit[ed] abortions before viability,” which the Eighth Circuit held conflicted with “Supreme Court precedent holding that states may not prohibit pre-viability abortions.”[208] The Eighth Circuit so held even though it thought that “good reasons exist for the Court to reevaluate its jurisprudence” and the viability rule, including that the rule fails to adequately consider the “substantial state interest in potential life.”[209]

These federal courts’ reaffirmation of the viability rule makes sense in light of nearly fifty years of the Supreme Court’s precedents. Even before Casey, lower courts focused on viability.[210] And if we look to opinions following Casey, the result is universal: viability is the cornerstone of the Court’s abortion jurisprudence.

Given that consistent history, no other result would even be permissible under vertical stare decisis, a constitutional imperative under Article III of the Constitution.[211] Vertical stare decisis commands lower federal courts to be “subordinate to that one Supreme Court” and “decide cases in line with Supreme Court precedent.”[212] And the Court’s ability to review its own decision does not alter “any obligation of ‘inferior’ federal courts . . . to follow Supreme Court precedent.”[213] Thus, regardless of their views of the propriety of the Court’s abortion jurisprudence, every lower federal court to consider the question has reaffirmed what the Supreme Court has long made clear: Roe’s central holding included the viability rule.

III. The Argument That the Viability Rule Is Nonetheless Dicta Is Unpersuasive.

Nearly all scholars, on all sides of the abortion issue, view viability as the Court’s rule.[214] Some scholars, most notably Professor Randy Beck, argue instead that a proper understanding of the legal issue before the Court in Roe compels the conclusion that Roe’s holding does not contain viability.[215] Roe’s viability line cannot be a part of its holding, his argument goes, because “the issue of the duration of abortion rights was not before the Court.”[216] “Once the Court concluded that a woman has a fundamental right to terminate an unwanted pregnancy and that the states lack a compelling interest in protecting fetal life at the outset of pregnancy, the invalidity of the statute was established regardless of how far into pregnancy the right to an abortion extends.”[217] In other words, he argues that the Court’s quasi-statutory timeline was “unnecessary to resolve the issue before the Court” and thus is not part of Roe’s holding.[218]

To be sure, viability was not extensively briefed or argued in Roe, and good arguments can be made that it was an arbitrary, unreasoned choice.[219] The lack of verifiable scientific evidence led even Justice Blackmun to acknowledge that the viability rule could lead to “arbitrary” decisions.[220] And perhaps the Court could have resolved the case on a narrower grounds; Justice Blackmun’s draft after the initial argument in Roe would have held the Texas law void for vagueness.

Yet for several reasons, the dicta reading is ultimately unconvincing, especially given Casey. Even if the Court could have resolved Roe or Casey on other grounds, it resolved those cases by applying a viability rule.[221] Without viability, there is nothing for Roe and Casey to stand on. Both rejected an unlimited right to abortion. To recast viability as dicta fails to account for the Court’s own words and nearly 50 years of application.

First, the dicta reading fails to appreciate that Roe rejected the proposition that women have an “absolute” right to abortion at “whatever time, in whatever way, and for whatever reason.”[222] Under Roe’s framework, a state may limit a woman’s “fundamental right” to abortion with a narrowly tailored statute addressing a “compelling state interest.”[223] And with the state’s “important and legitimate interest in potential life, the ‘compelling’ point is at viability.”[224] The law was struck down because it “ma[de] no distinction between abortions performed early in pregnancy and those performed later.”[225] The validity of the statute in Roe thus did turn on when a state may regulate abortion to protect fetal life. To conclude otherwise would ignore the Court’s reasoning for striking down the statute and disregard that both the Court’s judgment and reasoning have independent precedential value.[226] In short, as Professor Claeys shows, “such a reading would be a de facto rewrit[e]” of Roe.[227]

Next, if Roe’s viability rule were dicta, then its first trimester rule would have to be dicta too. The relevant law in Roe did not (in the Chief Justice’s words) “depend[] upon” which trimester the mother was in any more than they depended on viability.[228] Yet the Supreme Court immediately adjudicated cases based on the trimester framework. In Doe v. Bolton, issued the same day as Roe, the Court considered Georgia health regulations requiring, among other things, that abortions be performed in accredited hospitals.[229] The Court reiterated that Georgia could only impose abortion regulations related to health “from and after the end of the first trimester.”[230] The Court invalidated Georgia’s existing standard in large part because it “fail[ed] to exclude the first trimester of pregnancy.”[231] Likewise, in Danforth, Missouri tried to regulate abortion during the first trimester.[232] But the Court again emphasized that “Doe and Roe clearly establish the State may not restrict the decision of the patient and her physician regarding abortion during the first stage of pregnancy” and concluded that portions of Missouri’s statute conflicted “with the standards enunciated in Roe v. Wade.”[233] Similarly, both Akron and Planned Parenthood of Kansas City v. Ashcroft involved statutes that imposed post-first-trimester regulations aimed at protecting the health and safety of women.[234] And the Court in those cases reiterated that the standard under Roe changed “after the end of the first trimester.”[235] In Akron, for example, the Court invalidated Akron’s regulation because it “imposed a heavy, and unnecessary, burden on women’s access” to abortion “after the first [twelve] weeks.”[236] Finally, the plurality in Casey considered it necessary to expressly “reject the trimester framework,” which makes sense given the Court’s prior reliance on the trimester framework [237] Given this treatment, it is hard to view Roe’s trimester framework as a holding yet its viability rule as dicta. Both were at the core of Roe’s quasi-statutory summary of its holding.

To the point that viability was not briefed in Roe, the Court often announces holdings on unbriefed issues, rightly or wrongly. Erie Railroad Company v. Tompkins[238] overruled Swift v. Tyson,[239] which applied the common-law rule of diversity, without briefing or argument.[240] Likewise, Mapp v. Ohio[241] overruled Wolf v. Colorado,[242] which had allowed evidence obtained in violation of the Fourth Amendment to be admitted, also without briefing or argument.[243] Washington v. Davis decided that Title VII did not supply the standard for constitutional discrimination even though the parties agreed that it did.[244] Younger v. Harris prohibited injunctions against state court criminal cases despite neither party asking for such a result.[245] Batson v. Kentucky rested its holding “on a constitutional argument that the petitioner ha[d] expressly declined to raise.”[246] And finally, Employment Division v. Smith,[247] announced the Free Exercise Clause’s neutral and general applicability standard, even though “neither party squarely addressed the proposition the Court was to embrace.”[248]

As the Court has held, “when an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of the governing law.”[249] And “the Supreme Court has long recognized that a court may consider an issue ‘antecedent to . . . and ultimately dispositive of’ the dispute before it, even an issue the parties fail to identify and brief.’”[250] What makes a holding a holding is not what the parties argued, but what the Court decides. In any event, viability was briefed and argued extensively in Casey.[251]

Nor does the legislative nature of Roe’s trimester and viability holding make it dicta, contrary to Justice Stewart’s concern. After all, similarly legislative language was issued in the form of prescribed police warnings a few years before Roe in Miranda v. Arizona,[252] but no one could contend that those warnings were thus mere dicta. The Court often prescribes a legislative-like test for adjudicating constitutional rights—much of Fourth and Fifth jurisprudence, for instance—and whatever the merit of such tests, they are not considered dicta.

Look too at the tiers of scrutiny. Take strict scrutiny, for example, which applies to content-based speech restrictions.[253] Even though a court could invalidate a content-based speech restriction without using that test, it is the test required by the Court’s precedents. As Justice Blackmun noted in defending the viability rule, “the critical elements of countless constitutional doctrines nowhere appear in the Constitution’s text,” and they are “judge-made methods for evaluating and measuring the strength and scope of constitutional rights or for balancing the constitutional rights of individuals against the competing interests of government.”[254] But that does not make them mere dicta, to be disregarded when inconvenient.

Turning to Casey, the argument that it reaffirmed viability only “in dicta”[255] depends on ignoring that decision’s own words. Casey called the viability rule Roe’s “essential holding.”[256] After labeling viability as a holding, the Court walked through stare decisis factors to uphold the viability rule.[257] More, Casey’s overbreadth judgment depended on viability.[258] And in a final endorsement of the viability rule as Roe’s holding, the Casey plurality said that “[a] finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”[259] In other words, Casey explicitly (and repeatedly) tied the undue burden standard to the viability rule.

The viability rule and the undue burden standard are inextricably linked.[260] If the viability rule is dicta, then the undue burden rule is dicta too—and then abortion cases are governed by no rule at all. And even if the undue burden rule somehow exists outside the viability rule, that would imply that the undue burden standard extends through the end of pregnancy—i.e., that Casey reduced possible state regulation of abortion. That reading appears implausible, given Casey’s lament that Roe “went too far.”[261]

Conclusion

Since Roe was decided nearly fifty years ago, the Supreme Court has repeatedly reaffirmed the viability rule as its central holding. Though the dicta reading may have had some appeal right after Roe, it carries far less force after fifty years of separation and the substantial weight of precedent in between. Roe and Casey, related Supreme Court precedents, and every federal decision to consider the issue have held that the viability rule is the central holding of the Court’s abortion jurisprudence. As Chief Justice Roberts has explained, stare decisis cannot “depend[] on radically reconceptualizing [a prior decision’s] reasoning” as the basis for upholding that decision.[262] That is because it is “a doctrine of preservation, not transformation.”[263] “There is no basis,” the Chief Justice continued, “for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.”[264] The Court “cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”[265] Calling the viability rule dicta to justify a narrow ruling in Dobbs would contravene the Supreme Court’s own explanations of its abortion jurisprudence, its applications of that jurisprudence, and decades of federal cases relying on that jurisprudence.

    * Christopher Mills is an adjunct professor at the Charleston School of Law and principal at Spero Law LLC. He authored an amicus brief submitted in Dobbs v. Jackson Women’s Health Organization. Brief for the Am. Coll. of Pediatricians and the Assoc. of Am. Physicians & Surgeons as Amici Curiae in Support of Petitioners, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. filed July 29, 2021).

    ** Blake Davis is a third-year law student at Wake Forest University School of Law.

    *** Richard Osborne is a third-year law student at Regent University School of Law.

  1. Transcript of Oral Argument at 18, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. argued Dec. 1, 2021). ↩

  2. Id. ↩

  3. Id. at 19. ↩

  4. Id. at 20. ↩

  5. Id. ↩

  6. Id. at 68. ↩

  7. Id. ↩

  8. See Petition for Writ of Certiorari, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. filed June 15, 2020) (petitioning the Court for certiorari on three questions); Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619, 2619–20 (2021) (“Petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit granted limited to Question 1 presented by the petition.”). ↩

  9. Brief for Petitioners at 1, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. filed July 22, 2021) (“Under [Roe and Casey], a state law restricting abortion may not pose an ‘undue burden’ on obtaining an abortion before viability.”); Brief for Respondents at 9, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. filed Sept. 13, 2021) (Casey “reaffirmed the ‘most central principle’ of its abortion jurisprudence: that states cannot prohibit abortion until viability.”); Brief for the United States as Amicus Curiae Supporting Respondents at 2, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. filed Sept. 20, 2021) (“’Before viability,’ the State’s legitimate interests in fetal life, women’s health, and other related matters ‘are not strong enough to support a prohibition of abortion.’” (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992)); Brief for the States of Texas et al. as Amici Curiae in Support of Petitioners at 6, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. filed July 20, 2021) (“Casey reiterated the scope of that right [to abortion] when it reaffirmed ‘the central holding of Roe,’ that ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’”); Brief for the States of California et al. as Amici Curiae in Support of Respondents at 2, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. filed Sept. 20, 2021) (The “Court’s settled precedent” “directs that States may not ban abortions before viability.”). ↩

  10. Professor Girgis argues that the proposed ruling would use the “undue burden” concept in a radically different sense that would also serve a novel doctrinal function and constitutional rationale for abortion rights. He also identifies four significant issues if the Court embraces that transformation. First, the Court would appear increasingly “arbitrary and legislative,” as “there seems to be no morally significant bright-line change in the fetus during [the] window” between conception and viability. Sherif Girgis, Misreading and Transforming Casey for Dobbs, 20 Geo. J.L. & Pub. Pol’y 15 (forthcoming 2022) (manuscript at 15) (on file with authors). Second, “by resting on a rationale for protecting abortion so unknown to precedent that it had to be staked on the swing Justices’ own arguments and authority,” a ruling based on whether women have a “fair opportunity” to obtain an abortion “might seem harder for them to scale back later on.” Id. at 16. Third, “scaling back might be harder still because Dobbs would have affirmed an absolute minimum right that is not pegged to evolving judgments about the interest in fetal life at different stages.” Id. at 17. Fourth, because it presents no bright-line rule, “[i]t would presumably use ‘undueness’ to determine both when a regulation is like a ban and when a ban or constructive ban starts too early.” Id. at 17. ↩

  11. Brief for Respondents at 50, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. filed Sept. 13, 2021); see also Brief for the United States as Amicus Curiae Supporting Respondents at 5, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. filed Sept. 20, 2021) (“[T]his Court should also reject petitioners’ purportedly more modest alternative arguments for upholding the Act while nominally maintaining some constitutional protection for abortion. Both alternatives would still require the Court to overrule the central holding of Roe and Casey by rejecting the viability rule.”). ↩

  12. Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2003 (1994). ↩

  13. Torres v. Madrid, 141 S. Ct. 989, 1005 (2021) (Gorsuch, J., dissenting) (quoting Bryan A. Garner et al., The Law of Judicial Precedent 44 (2016)). And other Justices have defined “dicta” similarly. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66–67 (1996) (Rehnquist, C.J., writing for the Court) (The “portions of the opinion necessary to [reach] that result” are binding and not “mere obiter dicta.”); id. at 125 (Souter, J., dissenting) (“[D]icta in the classic sense” is “sheer speculation about what would happen in cases not before the court.”). ↩

  14. Pittson Co. v. United States, 199 F.3d 694, 703 (4th Cir. 1999) (quoting United States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988) (Posner, J.)); Payne v. Taslimi, 998 F.3d 648, 654 (4th Cir. 2021) (quoting Pittson and Crawley for the same principle); see also Cohens v. Virginia, 19 U.S. 264, 399–400 (1821) (explaining what statements were dicta and what statements were holdings in Marbury v. Madison). ↩

  15. See Randy Beck, Transtemporal Separation of Powers in the Law of Precedent, 87 Notre Dame L. Rev. 1405, 1429 (2012) (“The only portions of an opinion entitled to binding effect under the rule of stare decisis are those necessary to resolution of the dispute pending before the precedent-setting court.”). ↩

  16. Ryan C. Williams, Plurality Decisions and the Ambiguity of Precedential Authority, 74 Fla. L. Rev. (forthcoming 2022) (manuscript at 53) (on file with authors) (citing David Klein & Neal Devins, Dicta, Schmicta: Theory Versus Practice in Lower Court Decision Making, 54 Wm. & Mary L. Rev. 2021, 2027 (2013)); see also Randy J. Kozel, The Scope of Precedent, 113 Mich. L. Rev. 179, 187–88 (2014) (collecting Supreme Court precedent addressing the distinction between dicta and holdings). ↩

  17. Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 Wash. U. L. Rev. 1, 22 (2013); see also Ryan C. Williams, Questioning Marks*:* Plurality Decisions & Precedential Restraint, 69 Stan. L. Rev. 795, 801 (2017) (“The traditional common law conception of a decision’s binding effect—reflected in the notion of the ratio decidendi . . . presupposes such a connection [between judgment and rationale] by limiting a decision’s precedential force to those portions of the deciding court’s reasoning that were necessary to its judgment.”); Ratio Decidendi, Black’s Law Dictionary (9th ed. 2009) (defining the term as the court’s “reason for deciding”). ↩

  18. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996); see also Tyler v. Cain, 533 U.S. 656, 663 n.4 (2001). ↩

  19. Seminole Tribe, 517 U.S. at 67 (quoting Cnty. of Allegheny v. ACLU, 492 U.S. 573, 668 (1989) (Kennedy, J., concurring in part and dissenting in part)). ↩

  20. 19 U.S. 264 (1821). ↩

  21. Id. at 399; see, e.g., Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511, 520 (2012) (referring to the Cohens holdings-dicta divide as a “sage observation”); Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006) (“For the reasons stated by Chief Justice Marshall in Cohens v. Virginia, we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.”). ↩

  22. Richard M. Re, Beyond the Marks Rule, 132 Harv. L. Rev. 1942, 1966 (2019) (quoting Marks v. United States, 430 U.S. 188, 193 (1977)); see also Del Castillo v. Sec’y, Dep’t Health, No. 19-13070, slip op. at 13 (11th Cir. Feb. 18, 2022) (Luck, J). (explaining that “[a]s courts sometimes do, the Locke court also gave an additional reason for its holding,” as “[b]oth reasons supported [the court’s] conclusion”). ↩

  23. S. Blake Davis, Comment, Beware the Ides of Marks, 56 Wake Forest L. Rev. 685, 688–91 (2021) (addressing the origins and history of the Court’s Marks Rule jurisprudence). ↩

  24. See generally Eric R. Claeys, Dobbs and the Holdings of Roe and Casey, 20 Geo. J.L. & Pub. Pol’y 283 (forthcoming 2022) (March 2022 draft manuscript) (on file with authors). ↩

  25. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992). ↩

  26. June Med. Servs. LLC v. Russo, 140 S. Ct. 2103, 2133–41 (2020) (Roberts, C.J., concurring in the judgment). ↩

  27. Citizens United v. FEC, 558 U.S. 310, 384 (2010) (Roberts, C.J., concurring). ↩

  28. Id. at 375. ↩

  29. 410 U.S. 113 (1973). ↩

  30. Id. at 117–18. ↩

  31. Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970), aff’d in part, rev’d in part, 410 U.S. 113 (1973). ↩

  32. Clarke D. Forsythe & Bradley N. Kher, A Road Map Through the Supreme Court’s Back Alley, 57 Vill. L. Rev. 45, 48 (2012). The lack of an evidentiary record in Roe and Doe “should have been a red flag to the Justices,” as hearing cases without a robust record “violated long-standing principles of not deciding constitutional questions without a full record.” Id. Instead, “the sociological and medical assumptions that provided the premises for the Justices’ statements . . . were thus derived from the parties’ and amicus briefs,” not an evidentiary record articulating “data on the short- and long-term risks of abortion.” Id. ↩

  33. Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey 90 (2005). ↩

  34. See, e.g., David F. Forte, Life, Heartbeat, Birth: A Medical Basis for Reform, 74 Ohio St. L.J. 121, 125 (2012). ↩

  35. As the Chief Justice noted, Justice Blackmun’s private papers are “an unfortunate source.” Transcript of Oral Argument at 19, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. argued Dec. 1, 2021). ↩

  36. David J. Garrow, How Roe v. Wade Was Written, 71 Wash. & Lee L. Rev. 893, 907 (2014) (bracket omitted) (Letter from George T. Frampton to Justice Blackmun (Aug. 11, 1972) (on file with the Library of Congress, Blackmun Papers, Box 152)). ↩

  37. Tinsley E. Yarbrough, Harry A. Blackmun: The Outsider Justice 220 (2008). ↩

  38. Randy Beck, Self-Conscious Dicta: The Origins of Roe v. Wade*’s Trimester Framework*, 51 Am. J. Legal Hist. 505, 520 (2011). ↩

  39. Garrow, supra note 36, at 910; Greenhouse, supra note 33, at 95. ↩

  40. Yarbrough, supra note 37, at 220 (quoting Letter from Lewis Powell to Harry Blackmun (Nov. 29, 1972) (on file with the Library of Congress, Harry Blackmun Papers, in-house online Roe and Doe files)). ↩

  41. Transcript of Oral Argument at 18, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. argued Dec. 1, 2021) (“I know [viability] wasn’t briefed or argued.”). ↩

  42. See Abele v. Markle, 351 F. Supp. 224, 232 (D. Conn. 1972) (Newman, J.), vacated sub nom. Markle v. Abele., 410 U.S. 951 (1973); James D. Robenalt, The Unknown Supreme Court Clerk Who Single-Handedly Created the Roe v. Wade Viability Standard, Wash. Post (Nov. 29, 2021), https://www.washingtonpost.com/history/2021/11/29/viability-standard-abortion-supreme-court-hammond/. ↩

  43. Beck, supra note 38, at 522. ↩

  44. Garrow, supra note 36, at 913–14. ↩

  45. Id. at 914. ↩

  46. Id. ↩

  47. Id. at 921. ↩

  48. Id. at 916. ↩

  49. Id. at 916–17. ↩

  50. Beck, supra note 38, at 525. ↩

  51. Id. ↩

  52. Id. ↩

  53. Id. at 526. ↩

  54. Roe v. Wade, 410 U.S. 113, 162 (1973). ↩

  55. Id. at 163. ↩

  56. Id. ↩

  57. Id.; see also John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 924 (1973) (explaining that in the Court’s view “it is viability that is constitutionally critical” but criticizing that approach because “the Court’s defense seems to mistake a definition for a syllogism”). ↩

  58. Roe, 410 U.S. at 163–64. ↩

  59. Bernard Schwartz, The Unpublished Opinions of the Burger Court 150–51 (1988). ↩

  60. Roe, 410 U.S. at 164 (emphasis added). ↩

  61. Id. at 164–65. ↩

  62. Id. at 165. ↩

  63. Id. at 135–36. ↩

  64. See Brief of Amici Curiae Christian Legal Society and Robertson Center for Constitutional Law in Support of Petitioners at 11, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. filed July 28, 2021) (“[T]he states generally embraced the common law rule that prohibited abortion after ‘quickening.’”). ↩

  65. Roe, 410 U.S. at 135–36 & n.26. ↩

  66. Claeys, supra note 24, at 303–05 (“[Texas’s law (Article 1191)] needed to pass muster under the police powers standards appropriate for broad-based prohibitions. Those standards were supplied by the next ratio decidendi, Roe’s viability ratio . . . . Since the viability ratio supplied a ground that could uphold Article 1191, the Court needed to determine whether it did uphold Article 1191 [across the board]. The Court concluded that Article 1191 did not apply only after viability, that it raised constitutional problems because it applied in many cases before viability. That proposition was the final ratio in the abortion prohibition holding.”). ↩

  67. Id. at 308–09 (“[V]iability obviously does play a key role in the ratio on whether a broad-based prohibition on abortion violates due process-backed abortion rights. Since the prima facie right is defeated only after fetuses become viable, Article 1191 could not threaten constitutional rights unless it applied to pre-viability abortions. Viability was thus necessary to, and at issue, in Roe’s analysis of Article 1191.”). ↩

  68. 410 U.S. 179 (1973). ↩

  69. Id. at 195. ↩

  70. Id. (citing Roe, 410 U.S. at 163). ↩

  71. Id. at 163–65; see supra notes 60–62 and accompanying text. ↩

  72. 492 U.S. 490 (1989). ↩

  73. Id. at 547–48 (Blackmun, J., concurring in part and dissenting in part). ↩

  74. Id. at 544. ↩

  75. Id. at 553. ↩

  76. Id. at 554. ↩

  77. Transcript of Oral Argument at 19, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. argued Dec. 1, 2021). ↩

  78. 428 U.S. 52 (1976). ↩

  79. Id. at 63 (defining viability as “that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supportive systems”). ↩

  80. Id. at 75. ↩

  81. Id. at 61. ↩

  82. Id. ↩

  83. Id. ↩

  84. Id. ↩

  85. Brief of John C. Danforth, Attorney General of Missouri at 13, Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976) (Nos. 74-1151 and 74-1419) (arguing that the statute’s definition of viability “conform[ed] with the definition adopted by” Roe); Brief for Planned Parenthood of Central Missouri at 20–21, Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976) (Nos. 74-1151 and 74-1419) (calling the Court’s viability rule an “unmistakable” “dictate[]”). ↩

  86. Danforth, 428 U.S. at 61 n.1 (“Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” (quoting Roe v. Wade, 410 U.S. 113, 160 (1973))). ↩

  87. Id. at 63. ↩

  88. Id. at 77. ↩

  89. See id. at 79. ↩

  90. Id. at 56. ↩

  91. 439 U.S. 379 (1979). ↩

  92. Id. at 382. ↩

  93. Id. at 389. ↩

  94. Id. at 388. ↩

  95. Id. at 391. ↩

  96. Id. at 393. ↩

  97. See id. at 401–02 (White, J., dissenting) (stating that, under Roe, viability “is the point at which the State’s interest in protecting fetal life becomes sufficiently strong to . . . ‘proscribe abortion’”). The Commonwealth of Pennsylvania likewise conceded that Roe and Danforth recognize that only “from viability” does the “the state’s interest in the protection of prenatal life outweigh[] a woman’s right to an abortion.” Brief for Appellants at 16, Colautti v. Franklin, 439 U.S. 379 (1979) (No. 77-891). ↩

  98. 448 U.S. 297 (1980). ↩

  99. Id. at 312. ↩

  100. Id. at 302. ↩

  101. Id. at 312. ↩

  102. Id. at 317–18. ↩

  103. Id. at 313. ↩

  104. Id. In passing, the Medicaid recipients acknowledged that States have a compelling interest “in the potential life of the fetus” “after viability is reached.” Brief of Appellees at 116–17, Harris v. McRae, 448 U.S. 297 (1980) (No. 79-1268). ↩

  105. 462 U.S. 416 (1983). ↩

  106. Id. at 422, 424. ↩

  107. See id. at 419–20 (“And arguments continue to be made, in these [abortion] cases as well, that we erred in interpreting the Constitution. Nonetheless, the doctrine of stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law. We respect it today, and reaffirm Roe v. Wade.”). While no party (or Justice) directly challenged Roe’s holding, the majority understood Justice O’Connor’s dissent (which criticized Roe’s viability line) to, “for all practical purposes,” “accomplish precisely that result.” Id. at 420 n.1. ↩

  108. Id. at 427 (quoting Roe v. Wade, 410 U.S. 113, 154 (1973)). ↩

  109. Id. at 428 (quoting Roe, 410 U.S. at 162). ↩

  110. Id. (citing Roe, 410 U.S. at 163). ↩

  111. Id. at 461 (O’Connor, J., dissenting). ↩

  112. Id. at 458. ↩

  113. Webster v. Reprod. Health Servs., 492 U.S. 490, 529 (1989) (O’Connor, J., concurring in part and concurring in judgment). ↩

  114. 505 U.S. 833 (1992). Unless indicated otherwise, all Casey citations are to Casey’s plurality opinion written by Justices Kennedy, O’Connor, and Souter. ↩

  115. Id. at 844. ↩

  116. See id.; 18 Pa. Cons. Stat. 3205 (Westlaw, current through 2022 Reg. Sess. Act 13) (informed consent); 18 Pa. Const. Stat. § 3206 (Westlaw, current through 2022 Reg. Sess. Act 13) (parental consent); 18 Pa. Const. Stat. § 3209 (invalidated 1992) (spousal notice). ↩

  117. Casey, 505 U.S. at 846. ↩

  118. See Brief for Petitioners and Cross-Respondents at 28, Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (Nos. 91-744 & 91-902) (“Roe’s trimester framework establishes that the latter interest is not sufficiently compelling to override a woman’s right to choose abortion until the point of viability . . . .”); Brief for the United States as Amicus Curiae Supporting Respondents at 16, Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (Nos. 91-744 & 91-902) (explaining that Roe concluded “that a State’s ‘important and legitimate interest in potential life’ is not ‘compelling’” “until the fetus has reached viability”). Indeed, at oral argument, the State even conceded that it could not prevail under Roe. Transcript of Oral Argument at 5, Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (Nos. 91-744 & 91-902) (“If the right to choose abortion remains fundamental as established in Roe v. Wade, the strict scrutiny standard is applicable, and as this Court found in Akron and in Thornburgh, Pennsylvania’s onerous restrictions must fall.”). Instead, it asked the Court to overrule Roe. See Brief for Respondents at 33, Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (Nos. 91-744 & 91-902) (“Roe v. Wade was incorrectly decided, and the Court may wish to take this occasion to review and overrule it. Roe’s identification of the abortion right as fundamental finds no support in the Constitution, in history, in a societal consensus, or in the Court’s own precedents, and its use of trimesters and viability to define the contours of that right is at bottom arbitrary.”). ↩

  119. Casey, 505 U.S. at 846. ↩

  120. Id. at 861. ↩

  121. Id. at 856. ↩

  122. Id. at 860. ↩

  123. Id. ↩

  124. Id. ↩

  125. Id. ↩

  126. Id. at 870. ↩

  127. Id. ↩

  128. Id. at 876. ↩

  129. See id. (“Before viability, Roe and subsequent cases treat all governmental attempts to influence a woman’s decision on behalf of the potential life within her as unwarranted. This treatment is, in our judgment, incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy.”). ↩

  130. Id. ↩

  131. Id. ↩

  132. Id. at 873. ↩

  133. Id. at 860. ↩

  134. Id. at 870. ↩

  135. Id. ↩

  136. Claeys, supra note 24, at 308. ↩

  137. Id. at 32 (emphasis added) (quoting Casey, 505 U.S. at 877). ↩

  138. Id.; Casey, 505 U.S. at 846. More, Professor Girgis has argued that “[i]f all Casey meant by ‘no undue burdens’ is that women needed a fair chance to abort, it would have been redundant to add ‘before viability,’ since of course the chance would come, if ever, before viability.” Girgis, supra note 10, at 8. ↩

  139. 530 U.S. 914 (2000). ↩

  140. Id. at 921. ↩

  141. See id. ↩

  142. Id. ↩

  143. Id. at 930. ↩

  144. Id. at 938 (emphasis added) (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992)); see also Claeys, supra note 24, at 324 (“[T]he Court assumed that the viability threshold sorted the unconstitutional applications of the statute from the constitutional applications.”). ↩

  145. See Stenberg, 530 U.S. at 947 (O’Connor, J., concurring) (“As we held in Casey . . . [a]fter the fetus has become viable, States may substantially regulate and even proscribe abortion . . . .”); id. at 952 (Ginsburg, J., concurring) (“A state regulation that ‘has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus’ violates the Constitution.” (quoting Casey, 505 U.S. at 877)); id. at 957, 963–64 (Kennedy, J., dissenting) (stating that under a “proper understanding of Casey,” Nebraska must comply with a woman’s constitutional right “to have an abortion before viability”). ↩

  146. See Brief for Petitioner at 9, Stenberg v. Carhart, 530 U.S. 914 (2000) (No. 99-830) (In Casey, “[t]he Court held that States could not impose an undue burden on the ability of a woman to decide whether to terminate her pregnancy prior to fetal viability”); Brief of Respondent at 43, Stenberg v. Carhart, 530 U.S. 914 (2000) (No. 99-830) (explaining the Court’s abortion jurisprudence, “which permits only insubstantial burdens on the abortion decision prior to viability”); Brief for the United States as Amicus Curiae Supporting Respondent at 8, Stenberg v. Carhart, 530 U.S. 914 (2000) (No. 99-830) (“That right [speaking of abortion] means that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”). ↩

  147. See Gonzales v. Carhart, 550 U.S. 124, 132 (2007). ↩

  148. Id. at 141. ↩

  149. Id. at 133, 141. ↩

  150. Id. at 147. ↩

  151. 550 U.S. 124 (2007). ↩

  152. Id. at 146. ↩

  153. Id. at 145–46. ↩

  154. See id. ↩

  155. Id. ↩

  156. Id.; cf. Brief of Planned Parenthood Respondents at 12, Gonzales v. Carhart, 550 U.S. 124 (2007) (Nos. 05-380 and 05-1382) (Roe “recognized the state’s authority to ban post-viability abortions” (emphasis added)). ↩

  157. 136 S. Ct. 2292 (2016). ↩

  158. Id. at 2300. ↩

  159. Id. at 2320. ↩

  160. Id. at 2300 (third emphasis added). ↩

  161. Id. (emphasis added). ↩

  162. Id. at 2313. ↩

  163. See id. ↩

  164. See Brief for Respondents at 21, Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016) (No. 15-274) (“The undue-burden test then asks whether the regulation has the ‘purpose or effect of placing a substantial obstacle in the path of a woman’ seeking a pre-viability abortion.”); Brief for Petitioners at 30, Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016) (No. 15-274) (“Under Casey, a law imposes an undue burden, and is therefore invalid, ‘if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.’”); Brief for the United States as Amicus Curiae Supporting Reversal at 14, Whole Women’s Health v. Hellerstedt, 579 U.S. 582 (2016) (No. 15-274) (“[Casey] recognized a woman’s liberty to ‘choose to have an abortion before viability and to obtain it without undue interference from the State.’” (quoting Casey, 505 U.S. at 846)). ↩

  165. Whole Woman’s Health v. Jackson, No. 21-463, slip op. at 1 (U.S. Dec. 10, 2021). ↩

  166. See Petitioners’ Brief at 1, Whole Woman’s Health v. Jackson, No. 21-463 (U.S. filed Oct. 27, 2021) (“Texas recently adopted a law banning abortions at approximately six weeks of pregnancy, in clear violation of nearly fifty years of this Court’s precedent barring any prohibition of abortion before viability.”); id. at 5 (citing Roe v. Wade 410 U.S. 113, 163–64 (1973); then citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879 (1992); then citing June Medical Servs. LLC v. Russo, 140 S. Ct. 2103, 2120 (2020) (plurality opinion)) (“This Court’s precedent holds that the Constitution forbids a State from prohibiting abortion before viability.”); Brief for Respondents Jackson, Carlton, Thomas, Young, Benz, Paxton, and the State of Texas at 57, Whole Woman’s Health v. Jackson, No. 21-463 (U.S. filed Oct. 27, 2021) (“Under current precedent, abortion regulations cannot impose an undue burden on a woman’s ability to obtain a previability abortion.” (citing Casey, 505 U.S. at 877)); id. (“Post-viability abortions are not subject to the undue-burden test.”); Brief for the United States at 2, United States v. Texas, No. 21-588 (U.S. filed Oct. 27, 2021) (“For half a century, this Court has held that ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’” (quoting Casey, 505 U.S. at 879)); id. at 3 (“Because this Court has long held that a State may not prohibit any woman from choosing to terminate a pregnancy before viability, federal courts have uniformly enjoined similar ‘heartbeat laws’ in suits against the state officials traditionally charged with enforcing them.” (citation omitted)); Whole Woman’s Health v. Jackson, 13 F.4th 434, 444 (5th Cir. 2021) (“We are mindful that S.B. 8 applies to pre-viability abortions, which may ‘raise[] serious questions regarding the constitutionality of the Texas law.’” (quoting Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021)) (alteration in original)). ↩

  167. 140 S. Ct. 2103 (2020). ↩

  168. Id. at 2133 (Roberts, C.J., concurring). ↩

  169. June Medical, 140 S. Ct. at 2133 (Roberts, C.J., concurring) (quoting Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2299 (2016)). ↩

  170. Id. at 2135. Both June Medical Services and the United States (as amicus) accepted Casey’s viability rule as controlling. See Brief for Petitioner at 48 (The Act “unduly burdens a woman’s” “right to previability abortion”); Brief of United States at 17–18 (Casey allows states to “regulate abortion before viability” if those regulations “do not impose an undue burden”). ↩

  171. Id. at 2135 (quoting Casey, 505 U.S. at 871). ↩

  172. Id. at 2135 & n.1. ↩

  173. Id. at 2135 (emphasis added) (quoting Casey, 505 U.S. at 877). ↩

  174. Id. at 2138. ↩

  175. Id. ↩

  176. The authors tallied every reference to the viability rule and substantial obstacle standard in the Chief Justice’s June Medical concurrence. Both are particularly relevant because, according to Professor Girgis, “Casey uses ‘undue burden’” and the substantial obstacle standard “in a synchronic sense.” See Girgis, supra note 10, at 4. Professor Girgis argues that Casey’s emphasis on the synchronicity of the undue burden test inherently intertwined that standard with its temporal reference point: viability. Id. at 3–4; see also Casey, 505 U.S. at 878 (“An undue burden exists . . . [if it] place[s] a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”). ↩

  177. June Medical, 140 S. Ct. at 2139 n.3. (Roberts, C.J., concurring). ↩

  178. Confirmation Hearing on the Nomination of John G. Roberts to be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 143 (2005) (statement of the Honorable John G. Roberts, Jr.). ↩

  179. Id. at 144 (statement of Chairman Specter). ↩

  180. Id. at 145 (statement of the Honorable John G. Roberts, Jr.). ↩

  181. June Medical, 140 S. Ct. at 2151 (Thomas, J., dissenting) (brackets omitted) (quoting Gamble v. United States, 139 S. Ct. 1960, 1989 (2019) (Thomas, J., concurring)). ↩

  182. Id. (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854–869 (1992)). ↩

  183. June Medical, 140 S. Ct. at 2154 (2020) (Alito, J., joined by Gorsuch and Kavanaugh, JJ., dissenting) (quoting Casey, 505 U.S. at 877). ↩

  184. Ramos v. Louisiana, 140 S. Ct. 1390, 1412 n.1 (2020) (Kavanaugh, J., concurring) (quoting Casey, 505 U.S. at 861, 870, 873). ↩

  185. Confirmation Hearing on the Nomination of Honorable Brett M. Kavanaugh to be an Associate Justice of the Supreme Court of the United States before the S. Comm. on the Judiciary, 115th Cong. 127 (2018) (statement of the Honorable Brett M. Kavanaugh). When asked to give Roe’s holding in less than thirty seconds, Justice Kavanaugh responded “a woman has a constitutional right, as interpreted by the Supreme Court under the Constitution, to obtain an abortion up to the point of viability.” Id. at 157. ↩

  186. Casey, 505 U.S. at 993 (1992) (Scalia, J., concurring in judgment in part and dissenting in part). ↩

  187. Stenberg v. Carhart, 530 U.S. 914, 963–64 (2000) (Kennedy, J., dissenting). ↩

  188. See Citizens United v. FEC, 558 U.S. 310, 373 (2010) (Roberts, C.J., concurring) (“The Court properly rejects that theory, and I join its opinion in full. The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer. I write separately to address the important principles of judicial restraint and stare decisis implicated in this case.”); Graham v. Florida, 560 U.S. 48, 86 (2010) (Roberts, C.J., concurring in judgment) (“I agree with the Court that Terrance Graham’s sentence of life without parole violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ Unlike the majority, however, I see no need to invent a new constitutional rule of dubious provenance in reaching that conclusion. Instead, my analysis is based on an application of this Court’s precedents, in particular (1) our cases requiring ‘narrow proportionality’ review of noncapital sentences and (2) our conclusion in Roper v. Simmons.”); Obergefell v. Hodges, 576 U.S. 644, 686 (2015) (Roberts, C.J., dissenting) (“Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. . . . [O]ur Constitution does not enact any one theory of marriage.”); Miller v. Alabama, 567 U.S. 460, 494–99 (2012) (Roberts, C.J., dissenting); Merrill v. Milligan, Nos. 21A375 & 21A376, slip op. at 2 (U.S. Feb. 7, 2022) (Roberts, C.J., dissenting) (emphasizing “the wide range of uncertainties arising under Gingles”). ↩

  189. See CDC, Data and Statistics - Reproductive Health: Abortion, https://www.cdc.gov/reproductivehealth/data_stats/index.htm (Dec. 17, 2021) (listing reported abortions by year). ↩

  190. Davis, supra note 23, at 706–14 (discussing cases where the lower federal courts have all applied versions of the undue burden standard following June Medical). ↩

  191. Id. ↩

  192. We identified only one state court opinion arguing that the viability standard is “dictum.” Hamilton v. Scott, 97 So. 3d 728, 744 (Ala. 2012) (Parker, J., concurring specially). ↩

  193. June Med. Servs. LLC v. Russo, 140 S. Ct. 2103, 2113 (2020) (plurality opinion); id. at 2133–42 (Roberts, C.J., concurring in the judgment). ↩

  194. Bristol Reg’l Women’s Ctr., P.C. v. Slatery, 7 F.4th 478, 482 (6th Cir. 2021) (en banc) (emphasis added). ↩

  195. Id. at 483. ↩

  196. Id. at 491 (Moore, J., dissenting). ↩

  197. Id. (emphasis added). ↩

  198. Id. at 504–05 (citing June Medical, 140 S. Ct. at 2112–13, 2121–22, 2130–31, 2133 (Breyer, J.) (plurality op.)) (arguing that the June Medical plurality opinion authored by Justice Breyer required an analysis of a given statute’s benefits as part of the viability rule’s undue burden analysis). ↩

  199. Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 277–78 (5th Cir. 2019) (Ho, J., concurring), cert. granted, Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (May 17, 2021) (No. 19-1392); id. at 278 n.2 (collecting cases). ↩

  200. Id. at 279. ↩

  201. Memphis Ctr. for Reprod. Health v. Slatery, 14 F.4th 409, 438 (6th Cir. 2021) (Thapar, J., concurring) (quoting June Medical, 140 S. Ct. at 2142 (Thomas, J., dissenting)), reh’g en banc granted, opinion vacated, 18 F.4th 550 (6th Cir. 2021). ↩

  202. W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1321 (11th Cir. 2018) (Carnes, C.J.); see id. at 1330 (Dubina, J., concurring specially) (concurring because Judge Carnes’s majority opinion “correctly analyzes the law” even though he thought that “the [Supreme] Court’s abortion jurisprudence . . . has no basis in the Constitution”). ↩

  203. Greenville Women’s Clinic v. Bryant, 222 F.3d 157, 165 (4th Cir. 2000) (Niemeyer, J.) (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992)). ↩

  204. Planned Parenthood of Greater Ohio v. Hodges, 917 F.3d 908, 911 (6th Cir. 2019). ↩

  205. Preterm-Cleveland v. McCloud, 994 F.3d 512, 536 (6th Cir. 2021) (Sutton, J., concurring). ↩

  206. 795 F.3d 768 (8th Cir. 2015). ↩

  207. Id. at 773. ↩

  208. Id. (citing Casey, 505 U.S. at 876; then citing Roe v. Wade, 410 U.S. 113, 164–65 (1973)). ↩

  209. Id. at 772–73. First, “the Court’s viability standard has proven unsatisfactory because it gives too little consideration to the ‘substantial state interest in potential life throughout pregnancy.’” Id. at 774. Second, “[b]y taking this decision away from the states, the Court has also removed the states’ ability to account for ‘advances in medical and scientific technology [that] have greatly expanded our knowledge of prenatal life.’” Id. (second alteration in original). Third, “[m]edical and scientific advances further show that the concept of viability is itself subject to change,” making viability “less workable in the future.” Id. at 774–75. And finally, “the facts underlying Roe and Casey may have changed.” Id. at 775. ↩

  210. See, e.g., Doe v. Rampton, 366 F. Supp. 189, 192–93 (D. Utah 1973) (acknowledging that at viability, the State may prohibit abortion to “protect[] the fetus,” yet invalidating the post-viability abortion prohibition because the statute failed to allow “abortions performed to preserve the mental health of the mother”); Margaret S. v. Edwards, 488 F. Supp. 181, 225 (E.D. La. 1980) (similar); Schulte v. Douglas, 567 F. Supp. 522, 524 (D. Neb. 1981) (“I agree with the plaintiffs that the definition of viability as stated in § 28–326(6) is in conflict with the definition of that term in Roe v. Wade.”); Am. Coll. of Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 283, 298 (3d Cir. 1984) (“[N]o Supreme Court case has upheld a criminal statute prohibiting abortion of a viable fetus. Each such statute considered either did not contain such a criminal provision effective at viability or was invalidated because there were fatal omissions in the statutory language or scheme.”). ↩

  211. See Amy Coney Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1730 (2013) (“Vertical stare decisis locks in the holding of a Supreme Court opinion in lower courts, and this is a significant stabilizing force in constitutional law.”); Michael T. Morley, Vertical Stare Decisis and Three-Judge District Courts, 108 Geo. L.J. 699, 747 & n.330 (2020) (explaining that Article III requires vertical stare decisis); Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817, 866 (1994) (“[L]ower court obedience to Supreme Court precedent is driven by Article III’s command of a centralized decisionmaker within a system of decentralized access.”); Davis, supra note 23, at 716 (“Vertical stare decisis is an absolute requirement under the United States Constitution.”). ↩

  212. United States v. Duvall, 740 F.3d 604, 609 (D.C. Cir. 2013) (Kavanaugh, J., concurring). ↩

  213. Gamble v. United States, 139 S. Ct. 1960, 1981 & n.2 (2019) (Thomas, J., concurring). ↩

  214. See Douglas W. Kmiec et al., Individual Rights and the American Constitution 877 (3d ed. 2009) (“Roe incorporated what became known as a trimester analysis. . . . [A]fter viability[,] the government may prohibit abortions . . . .”); id. at 907 (“After Casey, the constitutionality of regulation of abortion depends upon whether the regulation, at least prior to viability, constitutes an undue burden.”); Daniel A. Farber et al., Cases and Materials on Constitutional Law 664 (5th ed. 2013) (explaining that post-Casey decisions have looked to whether the law “imposed an undue burden on a woman’s ability to choose an abortion” before viability); Erwin Chemerinsky & Michele Goodwin, Abortion: A Woman’s Private Choice, 95 Tex. L. Rev. 1189, 1211 (2017) (noting that although viability may be “arbitrary,” the “Court made [it] the point at which a state could prohibit abortion”); Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 276 (1992) (“[Roe] holds that the state has an interest in potential life which becomes compelling at the point of viability.”); Michael Stokes Paulsen, Repudiating Roe (Part I): The Most Important Abortion Case in Thirty Years, Pub. Discourse (June 28, 2021), https://www.thepublicdiscourse.com/2021/06/76590/ (disagreeing with Roe and Casey, but acknowledging that Casey reaffirmed Roe and “retain[ed] the absolute right to pre-viability abortion”). ↩

  215. See Beck, supra note 15, at 1460. ↩

  216. Id. ↩

  217. Id.; see also Forsythe & Kehr, supra note 32, at 55–56; Petition for Writ of Certiorari at 16, Dobbs v. Jackson Women’s Health, No. 19-1392 (U.S. filed June 15, 2020); Appellee Brief at 15, Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013) (No. 12-16670). ↩

  218. Beck, supra note 15, at 1460. A separate argument could be made that the viability rule should evolve as necessary in “the light of present medical knowledge.” Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 61 (1976); see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992) (failing to find advances in fetal development that would change “the validity of Roe’s central holding, that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate”). See generally Brief for the Am. Coll. of Pediatricians and the Assoc. of Am. Physicians as Amicus Curiae in Support of Petitions, Dobbs v. Jackson Women’s Health, No. 19-1392 (U.S. filed July 28, 2021) (explaining how advances in fetal development have eroded the factual bases for the viability rule). But that argument is not the focus here. ↩

  219. See James D. Robenalt, The Unknown Supreme Court Clerk Who Single-Handedly Created the Roe v. Wade Viability Standard, Wash. Post (Nov. 29, 2021), https://www.washingtonpost.com/history/2021/11/29/viability-standard-abortion-supreme-court-hammond/ (attributing formation of Roe’s viability line to Justice Powell’s law clerk whose intention was to help “many poor, or frightened, or uneducated, or unsophisticated girls” who may not seek help before the first trimester); id. (noting “the lack of any expert testimony or lawyer argument supporting [viability as the] cutoff point”). ↩

  220. Garrow, supra note 36, at 910. ↩

  221. Claeys, supra note 24, at 323–25. ↩

  222. Roe v. Wade, 410 U.S. 113, 153 (1973). ↩

  223. Id. at 155. ↩

  224. Id. at 163. ↩

  225. Id. at 164 (emphasis added). ↩

  226. Re, supra note 22, at 1965–93 (addressing the various ways a case’s judgment and outcome can have precedential value separate from any one rationale supporting the judgment, and vice versa). ↩

  227. Claeys, supra note 24, at 309. ↩

  228. Transcript of Oral Argument at 68, Dobbs v. Jackson Women’s Health, No. 19-1392 (U.S. argued Dec. 1, 2021). ↩

  229. 410 U.S. 179, 192 (1983). ↩

  230. Id. at 194–95. ↩

  231. Id. at 195. ↩

  232. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 58 (1976). ↩

  233. Id. at 66, 71. ↩

  234. See City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 422 (1983); Planned Parenthood of Kan. City v. Ashcroft 462 U.S. 476, 478 (1983). ↩

  235. Akron Center, 462 U.S. at 433. ↩

  236. Id. at 438. ↩

  237. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 873 (1992). ↩

  238. 304 U.S. 64 (1938). ↩

  239. 41 U.S. 1 (1842). ↩

  240. See Erie, 304 U.S. at 82, 88–89 (Butler, J., dissenting). ↩

  241. 367 U.S. 643 (1961). ↩

  242. 338 U.S. 25 (1949). ↩

  243. See Mapp, 367 U.S. at 646 n.3. ↩

  244. See 426 U.S. 229, 238 (1976). ↩

  245. See 401 U.S. 37, 40–41 (1971). ↩

  246. See 476 U.S. 79, 112 (Burger, C.J., dissenting) (emphasis omitted). ↩

  247. 494 U.S. 872 (1990). ↩

  248. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 572 (1993) (Souter, J., concurring in part and concurring in judgment) (addressing Smith’s procedural posture). ↩

  249. U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993) (quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 91 (1991)); Monge v. California, 524 U.S. 721, 741 n.2 (1998) (Scalia, J., dissenting) (same); cf. Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 622 (1996) (“[I]n any event, we are not bound to decide a matter of constitutional law based on a concession by the particular party before the Court as to the proper legal characterization of the facts.”); Young v. United States, 315 U.S. 257, 259 (1942) (recognizing that “our judgments are precedents” and that the proper understanding of matters of law “cannot be left merely to the stipulation of parties”). ↩

  250. Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., 783 F.3d 976, 980 (4th Cir. 2015) (quoting Independent Insurance Agents, 508 U.S. at 447). ↩

  251. See supra note 118 (compiling the parties’ arguments in Casey). ↩

  252. 384 U.S. 436, 444–45 (1966). See Dickerson v. United States, 530 U.S. 428, 431–32 (2000) (acknowledging the Miranda warnings as the Court’s holding); id. at 463 (Scalia, J., joined by Thomas, J., dissenting) (same). ↩

  253. E.g., Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). ↩

  254. Webster v. Reprod. Health Servs., 492 U.S. 490, 548 (1989) (Blackmun, J., concurring in part and dissenting in part). ↩

  255. Beck, supra note 15, at 1459. ↩

  256. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992). ↩

  257. Casey, 505 U.S. at 854–61. ↩

  258. Claeys, supra note 24, at 327–28. ↩

  259. Casey, 505 U.S. at 877 (emphasis added). ↩

  260. See supra note 60–62 and accompanying text. ↩

  261. Casey, 505 U.S. at 875–76. ↩

  262. Citizens United v. FEC, 558 U.S. 310, 384 (2010) (Roberts, C.J., concurring). ↩

  263. Id. ↩

  264. Id. ↩

  265. Id. at 375. ↩

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