Even though much has been said about the prematurely leaked draft decision of Dobbs, there’s a great deal to unpack now that the final opinion has been issued. Law Student Podcast host Meg Steenburgh welcomes back Syracuse University College of Law Vice Dean Keith Bybee to explore the reasoning of the opinion as well as the newly released concurring and dissenting opinions. Get a handle on this landmark decision that has raised many questions for law students and professors alike.
Professor Keith Bybee is Vice Dean and Paul E. and Hon. Joanne F. Alper ’72 Judiciary Studies Professor at Syracuse University College of Law.
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Meghan Steenburgh: Hello and welcome to another edition of the ABA Law Student Podcast. I’m Meg Steenburgh at 2L at Syracuse University College of Law JDi Program.
Today, we are honored to have with us again, Vice Dean and professor of law at Syracuse University College of Law, Keith Bybee. He holds a tenured appointment in the Maxwell School of Citizenship and Public Affairs as well and directs the institute for the study of the Judiciary Politics and the Media, a collaborative effort among the College of Law at the Maxwell School, and the SI Newhouse School of Public Communications. Among Professor Bybee’s areas of research, interests are the judicial process, LGBT politics, the politics of race and ethnicity American politics, constitutional law, and the media. Has research and books address these issues, as well as one concerning civility, how civility works.
We spoke with Professor Bybee in our last episode shortly after the leaked draft of the Dobbs case before The Supreme Court, now it is out. And Professor Bybee joins us again to talk about it. Thank You for joining us today.
Keith J. Bybee: Thanks for having me again.
Meghan Steenburgh: So, impressions of the Dobbs decision focused on substantive due process, history, did the Supreme Court convince you?
Keith J. Bybee: Well, I was persuaded that Justice Alito and the five justices for him are firmly convinced of correctness of their point of view. There is a tremendous amount of confidence in that opinion. Even anger and impatience at alternative points of view. So, for example, the court does not just overrule Roe and Casey because they’re wrong, but because they are in the language of the Court egregiously wrong. It’s not just that it’s a misstep that the court has made, it must be connected. It’s a colossal historic mistake that has distorted the law for the past half century that has presented a wholly unworkable and damaging standard, and has distorted and a negative impact on other areas of law beyond those concerning abortion. All of that is the point of view of the majority.
So the tone of the opinion is very strong. If you ever been in a hiring meeting, Meg, where you’re trying to decide between different applicants for a position. Sometimes there can be a dynamic where people will decide, “Not just that candidate A is better than candidates B and C,” but people will talk themselves into position where candidates B and C are unemployable. But there’s no way anybody would ever want to hire them. We must go with candidate A. And that’s the tone and quality of this majority opinion. There is no other way other than overturning a Roe and Casey outright because they are so egregiously in error.
Meghan Steenburgh: You know, it’s interesting you say that because that was the impression I had too. It’s almost as if someone was trying so hard to win an argument, they were throwing everything at it. And this is just law student perspective. I felt one point in particular or one thread throughout, it was also the historical reference and the fact that, well, if they wanted abortion, when the 14th amendment was added, they could have referenced it. They could have provided that. That same time, if I know that Justice Alito and the rest of the justices know, women didn’t even have the right to vote. In fact, it was the first time the word male was inserted into the Constitution. And so I felt as though there was a level of — it was rather disingenuous and almost dishonest in that. It’s inappropriate even to say as that.
Keith J. Bybee: It is the case. And this is not true, just a Dobbs opinion. But it is the case that in its decision making, the court will often sort of shape the evidence and arguments that it brings for us so they’re completely consistent with the conclusion that it reaches, right? So there’s a way in which you can call it calibration between the evidence presented or the arguments presented and the conclusion reached. And there’s certainly that going on here. I mean, for example, this speaks directly to the point we’re talking about here, the role of history, right?
So, the majority opinion says that there are two classes of rights and this is of course widely accepted. There are those that are explicitly enumerated in the constitution that the court protects from undue regulation.
And then there are those rights that are deemed to be fundamental by the court, but are not actually explicitly to the constitution they’re implied or inferred in some fashion. Now there have been a variety of different past opinions where the court has identified different implied fundamental rights. And in doing so, it has used different methodologies. One of them has been to look specifically at the text of the constitution and sometimes the court insists that the inference of an implied fundamental right must be tightly connected to the text. Other times, the court has allowed for very loose chain of inferences that identifies implied fundamental right a number of steps away from the plain text of the constitution.
So other times, the court has called attention to consequences. So what would it be like if such an implied fundamental right didn’t exist as part of the argument the court makes, a long way towards identifying an implied fundamental right. Other times, the court has looked at history. Now, sometimes when it’s look to history, it’s look to it in the way that the majority does in Dobbs, which is to say, is the purported right that we are being asked to infer or imply deeply rooted in our nation’s history traditions and implicit in the order concept of liberty. This really sort of let’s look at history and see if we find specific concrete examples in statutes and in state constitutional law, that reflect the existence of the very right we bring called upon to identify now, imply or infer from the constitution.
That’s one way of looking at history. But another way used in other cases is to say as we look to history, we must not only be aware of our traditions that we have, but we must also be aware of the traditions from which we have broken. That is to say, we have treat our history and traditions as a developing process, an evolving process. So we have to look at not only where we’ve been but where we’re going. That’s very different use of history than the majority in Dobbs.
The Dobbs majority though insists there’s only one method. Even though this is a plurality of methods and approaches, there’s only one method for implying or inferring a fundamental right, and that is the Deeply Rooted Historical Method.
Now, in this sense, we can say it’s disingenuous or dishonest where you could say this pose is incomplete to claim, it’s just that.
So for example, Obergefell v. Hodges, is the decision in which the court recognized that there’s a fundamental right to same-sex marriage. In that case, the majority opinion noted that there is approach, one approach, to identifying applied fundamental rights that tells us to look for deeply rooted concrete practices in our history and tradition, and the Obergefell Court majority says that’s appropriate for some implied fundamental rights, the case that comes from, by the way, most recently is Washington v. Glucksberg cited many times by the Dobbs majority and concerns whether or not there is implied fundamental right to assisted suicide.
The Obergefell Court says that’s fine for rights like that, But when it comes to rights like the ones we’re talking about here in Obergefell. The right to privacy, which addresses questions relating to choices of sexual partners, contraception, family size, procreation, the decision whether or not to have an abortion. That’s not how we talk about the derivation of that implied fundamental right. And the Dobbs court never mentions it. Never mentions that a majority of the court has explicitly said, there’s a variety of different ways of implying fundamental rights, not just one.
So, what does that mean? It might mean that one of the many areas of new ground that the Dobbs Court is breaking used to say from this point forward, there will only be one right and one way rather to identify implied fundamental rights, and that is by looking to our histories and traditions to identify what is deeply rooted therein. It could be, the problem with that claiming that that is one of the rulings of Dobbs, is that the Dobbs majority itself says that their ruling has no significance or impact or import for other implied fundamental rights like the ones I just mentioned which were derived using different methods. So, you know. Okay, how can that be, right? We can talk about that. How can the court, kind of in the sense, have its cake and eat it too?
How can they claim that this is the appropriate method for identifying an implied fundamental right in this context and not call into question all those other implied fundamental rights, that were derived by not relying on what was deeply rooted in our history, but rather relying on a suite of other arguments, arguments from consequences, arguments from constitutional text relatively loose inferences from constitutional text, arguments from history treated as a living evolving developing phenomenon where we have to, as I say, not only understand where we’ve been but where we’re headed. How can the court maintain that its approach in Dobbs doesn’t undermine those other implied fundamental rights?
Meghan Steenburgh: So when Justice Thomas set himself apart from the others and saying, no this is, we do need to consider Griswold, Lawrence, Obergefell, Eisenstadt, is he doing that as a way to stand out, as a way to start groupthink mentality around it or in his argument why he has get rid of substantive due process, there’s no such thing. And I believe it was his opinion that said look elsewhere, let’s start looking elsewhere.
Keith J. Bybee: That is consistent. Thomas is being consistent with himself here, right? I mean he has stake out this position, often just writing for himself.
Meghan Steenburgh: I think he cited himself numerous times throughout.
Keith J. Bybee: Well, his opinions will be the only ones to site, right? Because he’s been making this argument independently in separate opinions. Sometimes those opinions are descents, sometimes they’re concurrences, but he will often write separately because he stakes out of position that no one else is joining and he welcomes the embrace of a single methodology for identifying implied fundamental rights, would greatly reduce and actually probably eliminate many of the rights that have been implied in the modern era of constitutional law, and Thomas, doesn’t have any problems with that because he thinks it’s been fundamentally unprincipled of the court to use any different methodology for implying fundamental rights. He thinks it would correct the mistakes that were made in cases like Griswold, Obergefell, Lawrence v. Texas. Lawrence v. Texas is where the court recognized the implied fundamental right to same sex, sex. So it would be another one that would go. And evenings I would then open the opportunity to explore some constitutional avenues that have long been blocked.
So Thomas, for example, thinks it might be possible that there are rights guaranteed by the 14th Amendment Privileges and Immunities clause. The first section of the 14th Amendment guarantees Privileges and Immunities of United States citizenship from being denied by the states.
So the question is well, what is the content of those privileges and immunities. In a case from the 1870s called Slaughterhouse, the Supreme Court decided content of the privileges and immunities of the United States citizenship and said that they weren’t really that important. A lot of the basic fundamental rights that we have as free citizens are privileges and immunities of United State citizenship. Thomas agrees with that long settled decision. He thinks that there might be more important rights included under that heading or rubric of privileges and immunities United States citizenship, and we should take a look.
Now, it may turn out and I think I suspect this is where Thomas is going, the only rights included in the privilege and immunity United States citizenship are those explicitly listed in the Bill of Rights. So that would allow for incorporation. Incorporation is a process by which the Supreme Court decides which of the rights in the Bill of Rights apply to the states. The original Bill of Rights which was added to the constitution, really, as a concession to the Anti-Federalists opponents of the constitution never worried about the federal government consolidating so much power and acting tyrannically denying individuals their rights, was a guarantee of a roster of rights against federal encroachment. Those rights limited what the federal government could do in the Bill of Rights? They didn’t limit what the State Governments could do.
When the 14th Amendment was added to the constitution, it had a number of significant limitations on what the State Governments could do and the court over process of incorporation has been selectively identifying rights from the Bill of Rights and saying that they too can be protected from state level encroachment.
So Thomas is going to kind of heading down a road more or less alone on the court, although not unsupported necessarily by the work of some scholars, but heading down a road where he could say that all of the rights from the Bill of Rights — not all of them, some of them would be excluded. Most of them could comfortably be included in the category of privileges and immunities of United States citizenship and therefore incorporated against the state.
So Thomas has got a whole constitutional project, right, that he is on. But he himself, he sees absolutely no problem with taking the next step from Dobbs and saying yes this does indeed call into question all these other implied fundamental rights. Now the court has been operating from the 1960s forward, actually earlier than that, 1940s, right to procreate in Skinner v. Oklahoma. That was a case in the early 1940s. So for a very long time, 80 years, these have been part of our constitution. Thomas v. Comfortable claim question, but not the court majority.
Meghan Steenburgh: In reading the majority, do you take them at their word that they will leave the other cases alone? And I know that’s not there that something has to rise up and go through but I found it very interesting that they said no, we’ll leave this alone because this doesn’t concern potential life. When in actuality it does because it’s contraceptives and it’s same sex sex or sex or whatever it might be, they’re all still related in that sense to potential life. So I found that language curious, but do you take them for their word after reading that opinion?
Keith J. Bybee:
Well, the only point in the opinion it seems to be that fetal life becomes important ground for decision making is to distinguish abortion from these other implied fundamental rights. The overturning of Roe and the overturning of Casey is rooted principally in the lack of historical antecedent for the right to have an abortion. That it’s not deeply rooted in our history and traditions is the principal reason, although there are others that are offered. It’s not that fetuses are persons in a constitutional sense and therefore, have due process rights not to have their life, liberty, or property deprived, right without due process of law. The majority does not take that position. In fact, if it were to take that position, then it couldn’t say that it was allowing states to regulate in this area, more or less, as they like. Well some states to offer more protection for the decision whether or not to have abortion, and is currently enjoyed under Casey, and allowing other states, of course, to eliminate abortion inversely in all circumstances.
So if it were the case, that there was a fetal personhood in the Constitutional sense, then you couldn’t allow, there will be all kinds of problems with allowing abortion anywhere, right? So it’s a little hard something so they bring that in just for the case of separating off abortion. It doesn’t seem really deeply grounded. I think one thing you can do looking at this decision is see that they could lose, the majority could be lost if that effort was made, right? So the decision to uphold Mississippi’s Law was six to three. So that’s a five-member majority of fully on board and Chief Justice Roberts, concurring a result. So and then one of the people who adjust majority is Justice Kavanaugh. He said explicitly, this does not extend. You know, he repeats over and over and there’s no way that anything we’re saying here in any way calls into question constitutionality of right to contraception or right to same-sex marriage, right? None of those things are on the table.
So that sixth member of majority that is in favor of upholding Mississippi’s Law, could mail to a four-member plurality, maybe if there was an effort to extend the analysis of Dobbs to these other implied fundamental rights. So it could be that their word is good and since the least the minimal sense of five votes to take it any further.
Now you said, well of course something would have to come up to the court, right? The court doesn’t have power to just sort of take up any issue at once but look at how this decision or how this issue arose to the court now, right? There’s a long history in the context of abortion of states pushing the envelope. Passing laws, they know under current law unconstitutional in order to present the vehicle for a new majority on the court to test its commitment to precedent.
That happened in Casey, I mean the law that was issued in Casey enacted restrictions on abortion that had already been overturned by the court applying Roe in other context, right? So it was brought forward specifically because there are new members on the court. With the membership change in the court, we had on number of states passed legislation that was clearly in tension with one party or another of Casey and did so specifically to get it up to the court. Mississippi prohibited abortions after 15 weeks. Texas prohibited them after sex, right? And so there was a number of states that are passing laws to get them in front of the court. There are still laws in some states that are on the books prohibiting contraception right there to sort of left there on repealed after Griswold which is where fundamental right to use, contraceptive at least in the context of a marriage was upheld.
So you know those laws are there was to prevent somebody from enforcing them just to get a case up to the court. So it’s not as if you need some kind of massive social movement, agitating for a decade before an issue bubbles its way up to the Supreme Court. It can happen simply because of political actor and decides to make a case. It’s the ultimate choice is up to the court whether it decides to hear the case has appealed to it, the court is currently hearing less than 1% of the cases appealed to it. It only takes four votes in your case. So that’s not a lot of barriers or obstacles to getting a suit, the challenges, one of these other applications of an implied fundamental right, say to same-sex marriage to the level of the Supreme Court. I don’t think that’s the limitation. The question is really internal to the Supreme Court itself. Are there the votes to extend the rationale of Dobbs to call in question and actually invalidate one of these other implied fundamental rights?
Meghan Steenburgh: We are speaking with professor of law, Vice Dean at Syracuse University College of Law, Keith Bybee. We’ll be right back.
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Meghan Steenburgh: And we are back now with Keith Bybee, professor of Law and Vice Dean at Syracuse University College of Law. So did anything in the 213-page Dobbs decision surprised you? Did anything really change from the draft?
Keith J. Bybee:
You know, I was very surprised by the draft itself, although the fact of the leak. Also, the tone and strength of the language in the draft and the kind of decisiveness, there were no half measures in the leaked opinion. So I guess in a way, I can’t say I was shocked, but the official decision, it does seem to be the case I have done this myself. But I’ve read reports from several people who’ve redlined the official decision comparing it against the leaked draft. And there are very few or no material changes between the leaked draft and the official opinion. There are additional sections in the official opinion where the majority is responding to concurrence written by Chief Justice Roberts and the dissent, which appears to be a joint dissent written by Justices Breyer and Sotomayor and Kagan. The practice usually in Supreme Court is a single Justice will author same majority opinion or concurrence or dissent, and other justice who agree will join that opinion. But it’s not unprecedented although it’s unusual for Justices to author an opinion, be that the majority opinion concurrence or a dissent.
It happened in Casey, that was probably one of most famous instances where three justices jointly authored the opinion in which court holding of Roe was maintained and the undue burden standard was introduced where Justices Souter, O’Conner and Kennedy, they jointly authored it as a Troika. The dissenters in Dobbs are listed jointly as authors. It’s not written by say Kagan and joined by the other two, they’re all listed. So the majority opinion differs from the draft in the sense that there are responses. Those responses are not particularly illuminating, they’re very consistent with the arguments from the main part of majority opinions.
Keith J. Bybee: So, for example, Chief Justice Roberts, who concurs only in the results, he agrees that Mississippi should be allowed to prohibit abortions after 14 weeks, which is before the point of viability. Under Casey. It’s only after viability that states would have been able to constitutionally prohibit abortions altogether. He agrees that that change should be allowed, that change in the law, and therefore Mississippi should be allowed to do what it wants. But he otherwise would not overturn Rowan Casey. He would still recognize that there is an implied fundamental right to privacy that is broad enough to include the decision of whether or not to have an abortion. The majority responds by Roberts by saying, there’s no warrant for this kind of minimalism. It doesn’t solve any problem, right? I mean, we’d have to confront this fundamental question sooner or later, so we might as well rip the Band Aid off now, right? Those aren’t my paraphrasing. They rip the Band Aid off, but that’s the gist, right? And they also say that it’s okay to be minimalist, but you have to be, right?
You can’t just be minimalist for the sake of trying to reduce the amount of controversy a decision produces. And they actually cite to opinions that Roberts himself wrote in other cases where he rejected a minimalist approach for the sake of declaring particular law unconstitutional. So, they kind of throw that back in his face. That’s a typical majority, not just this majority, often does that to concurrences and descents. It tries to hoist the concurs and dissenters by their own petard, as it were, and say that, well, if you read what the old Chief Justice Robert said, you wouldn’t write a concurrence, just sticking to agreeing with the result. You would adopt our reasoning. And the majority rejects the dissenters largely because the dissenters do not limit themselves to this approach to inferring the implied fundamental oriented question that is limited to those rights that are deeply rooted in the nation’s history and traditions. It’s a fundamental disagreement there and so, of course, the majority can say, you offer no historical evidence that identifies the existence of this right concretely and deeply rooted in our tradition.
Of course, the dissenters say, yes, you’re right. We don’t do that because we think this right is grounded otherwise. So, the majority can just simply dismiss most of what the dissent says because they’re talking past each other at this point. So, is that surprising that the new bits that came out, the official decision? Not really surprising. Again, it’s sort of more typical but the breadth of this decision, even though there are many uncertainties about at the core of it, that an implied fundamental right that had been recognized by the Court for nearly 50 years, which had been reaffirmed by the Court and applied by the Court in dozens of decisions, have now been removed. That’s a big deal and depending how you define what’s happened in the past. It’s either unprecedented or it’s happened very rarely in the past. Some could point back to the end of the Great Depression and the constitutional transformation that happened in late 1930s as maybe being analogous. But it’s a very big deal. What the decision does accomplish is enormously important.
Meghan Steenburgh: I think one of the things, in addition to the historical references, Justice Alito emphasizing that this move places the abortion debate where it belongs and in the hands of the people, and Justice Cavanaugh also mirroring that. But both of them kept saying, 26 states asked us to do this. Millions of people asked us to do this. And I thought to me that seemed interesting because it seemed to be more of a legislative argument. Here they were arguing the whole time that this was very legislative in nature. But I felt that their responses were also legislative in nature, saying look at what 26 states asked us to do and I thought, well, that’s not the law. You are saying 26 states asked us to do that. Was that indicative of politics to you? Or was that just indicative of we’re trying to just bring in everything to show you why we’re at where we’re at?
Keith J. Bybee: Yeah, these are examples of the venerable constitutional principle any port in the storm, right? So, we often see this happening. So, we can certainly identify instances in jobs. So for example, there’s what you say right there, right? That Roe was criticized by the Dobbs majority because the court there was acting not as a court, but essentially as the legislature. It was doing all kinds of its own independent research and it was coming up with a regulatory schema that really is the sort of thing that you would expect to come out of a legislative body or an agency.
Tasked with implementing a broad legislative plan in detail rather than a court. So, that was one of the reasons why they said this is an egregiously wrong and weekly reasoned case. But you’re right. Then they turn around and say, but hey, look, these factors even though they say we can’t pay any attention to what’s going on outside of the court, we just have to do our job, as Alito says, they do mention that external factor. It’s also the case that when it comes to history and other references, the history in Roe is either incorrect according to the Dobbs majority or irrelevant in Roe itself. The majority opinion goes way back. It looks at different civilizations that are broadly antecedent to our history of the United States. What were the Greeks doing? What were the Romans doing? Also look at different religious traditions, Judaism, Catholicism, different philosophical schools, right?
There’s a very broad sweep and in Hobbs opinion says that’s irrelevant, right? All that stuff is irrelevant. Looking way far into the past and looking at other countries, what does it matter? Except of course, the Dobbs opinion does go back at one point to the 13th century does make reference to other countries not allowing prohibition of abortion prior to the point of viability. So, there’s a way in which, when convenient, the majority or in Kavanaugh’s case, concurring opinion will grab for arguments and evidence, the very kinds of arguments and evidence that it’s actually criticized its opponents for using. That happens all the time, the Supreme Court, and that’s one of the reasons why as a law student, but also as a law professor or just as a citizen, sometimes it’s hard to understand how the Court is behaving in a way that’s judicial or legal rather than political, that they’re actually constrained by the principles they’re using rather than simply manipulating the evidence, arguments and principles to justify a conclusion that they’ve already agreed upon.
So, it is a challenge not only for this opinion, as readers and as citizens, for us to discern the degree to which it’s a judicial act rather than a political act. That’s often a challenge that we have as students and as citizens when reading Supreme Court opinions.
Meghan Steenburgh: What are –and I am trying to keep this looking at it as a law student and understanding this from that perspective, a few fellow students have asked me one thing they would like to know is what are the alternatives now for those who disagree with that and from the other branches who say they will act, what do you see in response? Executive orders? What works? Commerce Clause, spending clause? And where do you go with all of this?
Keith J. Bybee: Sure. So let me first mention one alternative that seems to have been foreclosed by the Dobbs opinion, an alternative that has sometimes been raised as an alternative as the Court membership has changed and as members of the Court have become increasingly hostile towards Casey and Roe, the alternative that has surfaced sometimes is reframing abortion laws rather than thinking about an implied fundamental right to privacy, that includes the decision of whether or not to have an abortion, instead, think about these laws as relying on some kind of sex classification that their abortions are only performed on women. And so could we use that as a way of saying that we should equal protection perspective forget about implied fundamental rights, subject such laws to intermediate level review. Now, so long as you have an implied fundamental right, the Court is at some level protecting that right through strict scrutiny, which is more protective of the right than, say, intermediate level review, which is a step down. But if the only alternative to intermediate level view is rational based review, intermediate level view gives you some more protection. It says the Court should be more skeptical in reviewing the regulation of abortion on the grounds of a quasi-suspect classification being used.
The Dobbs majority sought to shut that down and said that even though it’s true that abortion regulations apply to a procedure only performed on women, that does not mean that there is a sex classification because there are plenty of women who aren’t pregnant and who aren’t getting abortions. The descent notes that 18% of pregnancies end in abortion now prior to Dobbs.
A large percentage of women under 45, I think something like 20% maybe will have an abortion. These are large numbers, but it’s not all of them, right? So the court has in the past for example, in a decision that’s controversial in the70s, said that we shouldn’t think of laws or practices, government practices that treat people who are pregnant differently from people who aren’t pregnant as involving a sex classification because there are both men and women who aren’t pregnant. So, it’s not just treating all women differently from all men. And so pregnant persons, a lot of classifies on the basis of pregnancy should not be subject to intermediate level or heightened review. That decision from the 70s is actually cited by the Dobbs majority when they seek to set aside the claim that abortion regulations could now be subject to intermediate letter review as sex classifications. That’s one alternative that the majority is shutting the door on. Okay, so all we’re left with legally is rational basis review.
So, before we talk about alternatives outside of the courts — what’s available inside the courtroom is making an argument that a given abortion regulation fails rational basis review. That can be hard to do, although not impossible, rational basis review can be extremely flexible. Rational basis review can be used if you go back to Caroline Products decisions said 1938 said that so long is not as if the legislature has to even do any fact finding, so long as there’s any set of facts that could be known that we can presume to know that would be supportive of the government’s regulation. Therefore, it’s constitutional and that could be known. Language is used by the Dobbs majority, which suggests that they envision a strongly deferential view of rational based review being applied to abortion regulations going forward. Under that strongly deferential approach, a law can be very poorly drawn, right? It can say, oh, we’re interested in protecting health of the pregnant woman, but it can do lots of things that don’t protect pregnant women under the justification that they’re simply taking one step at a time towards protecting the health of a pregnant woman.
So, it need not be a comprehensive protection of health. Laws can be inconsistent. They can be incoherent. The means used by the legislature can actually undermine the goal they say they’re pursuing and still be constitutional under differential rational basis review. Legislature doesn’t actually even have to offer reasons. The reviewing court can dream up the reasons what interests might have legislature been pursuing and how might the classifications use pursue that legitimate or permissible interest advance it. The court can dream all that up under deferential rational basis review. That doesn’t leave a lot of ground within the law, right? Within the courtroom, as it were to contest an abortion regulation. It’s not even clear what would count as unconstitutional abortion regulation under rational basis.
Maybe Rankles said this in a dissent in Roe abortion regulation that does not recognize an exception for saving the life of a woman. Maybe that would fail, maybe, but nothing else. So outside, what do you do? Well, rational basis view is an extremely differential standard that facilitates the policy making process, right? It essentially takes the courts out of overturning the results of any legislative or policy making process. So, one way is to go to the policy making process and to try to change rules, right? So can you have, say, states that allow for abortion? Can they develop assistance funds or even do advertising in states that don’t allow them saying, hey, you can come over to New York for example or California, get your abortion here, or can you there are going to be these mobile clinics that park right across the border. Can you come there and get a prescription or get dispensed and actually take the medication you would need for a chemically induced abortion rather than a surgical one? So those kinds of things not only can happen or happening after Dobbs — the decision in Dobbs but these are going to raise questions about the comedy and relationship between the states, for example and that’s going to land right back in court and so, it’s not as if the court is washing its hands of these decisions. They will just be coming back into different guys. The Texas law, for example, criminalizes the assistance of getting an abortion.
So, anybody who assists a number of companies have announced so they will provide travel funds for their employees who might be living and working in a state that has now very restrictive regulations regarding abortion to travel to a state where abortion is permitted. Well, if that happens in Texas, does that mean that that company is now liable under this law, right? They actually can an individual citizen because it’s kind of a bounty system in Texas report that get all their legal costs covered, plus ten grand and heavy penalties leveled against the company. Well, that raises a question, right? It’s like can service is out of state. Does that restrict how the company can spend its money? There are insurance questions there too. I mean, it’s complicated. Complicated and so it’s not as if it will just stay within the borders of each state. There was, prior to the Civil War, a claim made most famously by Stephen Douglas who was in his running for Senate against Abraham Lincoln when they were contesting a Senate race. And Douglas solution to problem of slavery was something he called popular sovereignty, which has just let each state decide, let’s keep the constitution neutral. And that way, if you want to be a free state, you can be a free state. If you want to be a slave state, you can be a slave state.
That was unworkable in two senses, right? One is that neither side was comfortable just allowing it to exist within the borders of each state, right? I mean, states — those who were enslaved had a way of escaping and going to free states so it wasn’t as if you could sort of separate the states and you had a lot of decisions made a federal government that could affect differentially a free state or a slave state and so people wanted to have say in the senate for example but also you had the question of rights, right? Is there a right to own another human being or isn’t there? What is your standing and status as a human being? Do you have this fundamental right or don’t you? And you don’t have a fundamental right if it can be decided up or down depending on which jurisdiction you have to wander into, right? That’s not what it means to have a right. What it means to have a right is that you possess it as an individual and the government can only regulate it as extremely strong reasons if it can regulate it for the weakest reasons whenever it wants just depending on what jurisdiction you’re in you don’t have a right.
So, we’re kind of in the same situation now it’s going to be very hard to limit how abortion is resolved within the borders of individual states because they’re going to be spillover phenomena because people move right so the abortion issue won’t stay within state borders and dependent of that there’s this question of rights fundamental status, belonging. Is this part of who you are as a member of our political community or not? In some states you can get a license to hunt certain animals and other states can’t. That’s the status of the right to have an abortion. Now there is no right. There is just simply what the state chooses to regulate and how it chooses to regulate it. So I don’t think the idea that as a result of the Dobbs somehow is just going to settle in states and will have this peaceful coexistence of patchwork laws across the United States it’s very hard to imagine in fact I just don’t think it will happen that this will have an issue that simply returned to the states that in their individual capacity they will resolve that’s one thing I think Dobbs gets wrong.
Meghan Steenburgh: My last question today with this and then a recent decision as well on religious freedom and prayers in a football field do you feel like your constitutional law class has just been blown to pieces? How do you even begin to handle all of these coming at you because you have this structure within that.
Keith J. Bybee: It’s difficult right? I mean anybody who teaches the subject knows that decisions which can be enormously consequential certainly not only the individuals involved but to the country at a given time maybe doctrinally of no great moment so you can have a consequential decision that it’s not necessary to add to the con law syllabus because we can make sense of it as students of the subject knowing what we already know maybe there’s an incremental change or doctrinal innovation, but it doesn’t warrant adding the whole case to syllabus.
And then there are cases that are obscure but doctrinally significant, right? And when they come along, you want to add them in. Now, there’s no pressure from students to do so because they never heard of it. So, the next year rolls around you can take your time to figure out where it’s going to fit in the syllabus, what edited version in case you want to use, so on and so forth. Then there are those cases that are socially and politically enormously significant. They dominate the news, and they significantly change doctrine. And you feel an obligation as an educator to instruct your students in those cases as soon as you possibly can. And I’m teaching con law class right now during the summer, and so I have an opportunity to introduce some of this material in more or less real time, even though I’m teaching right now. Some of it’s too late, but I cannot tell the students, oh yeah, the stuff we learned about the Second Amendment three weeks ago, it’s changed. So, the exam is going to change. I mean, you just have to make some hard choices. How much will this change the way in which con law is taught and then the way in which, say, con law is practiced?
That’s a big question. Dobbs stays within doctrines that we’re familiar with, and it shifts the review of abortion regulations from a well-established standard and established in Casey 30 years ago. It’s been around for a while to rational basis review, which is a standard that the courts work with all the time. But in the decision concerning New York State Law made it restricted very greatly how much easily one could carry a concealed weapon outside of the home. There the majority seems to suggest this could potentially be a great earthquake in constitutional law. It suggests that the right to bear arms should not be protected under strict scrutiny, that we shouldn’t use these tiers of review that have structured constitutional protection of rights for many decades, since the beginning of modern constitutional law. You could say instead, when it comes to that right and maybe to other rights too, we have to look to the past and see if the regulation passed by a government whether it’s state or federal government, is consistent with historical limitations, with no consideration of means and analysis that’s fundamental to the tiers of scrutiny that the Court uses. That kind of change. Were it to, maybe it’ll just be kind of a cul-de-sac, and it’ll be a standard that applies only the right to bear arms. Undue burden standard applied only to abortion.
So, it’s not inconceivable that we have a standard that’s different for protecting that right relative to other rights. But if that’s used in other contexts, then yes, the syllabus is going to have to be torn up. And the constitutional law taught five years from now will bear very little resemblance to the way in which it’s taught and practiced now. It’ll be a historical interest I still have Dred Scott and Plessy v. Ferguson on my con law syllabus. It’s important to know those cases and to order to understand the genesis of modern equal protection, for example. So, cases that are on the syllabus now might still remain in some diminished form because of their historical interest, and understanding them gives us a baseline understanding so we can better apprehend the constitutional law we have now. But that would be a big change. Huge. Will it happen? I don’t know. That’s how the common law system works. We have to wait and see how other courts apply these doctrines, how the Court itself importantly applies these doctrines in this very same term. When the Court in the gun rights case said that they were dispensing with tears of scrutiny, when the Court looked at whether or not a football coach could pray at the 50-yard line after a game, it applied to that fundamental. Fundamental right. Free exercise of religion, standard tiers of scrutiny. So, what does that mean? I don’t know. Welcome to my world, Meg. Welcome to our world, right, where we are all trying to figure out what the consequences are clear of what the Court has decided, but many consequences are not, and will become clear in the coming years.
Meghan Steenburgh: Well, thank you so much for joining us again, Professor Bybee. Really appreciate your insight into all of this.
Keith J. Bybee: Thank you.
Meghan Steenburgh: And thank you for listening. I hope you enjoyed this episode of the Law Student Podcast. I’d like to invite you to subscribe to the ABA Law Student Podcast on Apple podcasts. You can also reach us on Facebook at ABA for Law Students and on Twitter at abalsd. That’s it for now. I’m Meg Steenburgh. Thank you for listening.
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