I quite enjoyed class today, and I believe the classification of abortion as a negative right was the constitutionally correct interpretation under Harris and Maher. However, I did not find the majority opinion of Casey or dissent in Dobbs to be particularly compelling. Both opinions stress the importance of stare decisis. I think this assertion is especially weak because both Justices Breyer and Sotomayor voted to ignore stare decisis and overturn a 50 year precedent of Apodaca v. Oregon in Ramos v. Louisiana, 590 U.S. 83. - Which was decided just two years before Dobbs.
Justice Gorsuch wrote in Ramos, "But stare decisis has never been treated as “an inexorable command.” And the doctrine is “at its weakest when we interpret the Constitution” because a mistaken judicial interpretation of that supreme law is often “practically impossible” to correct through other means. To balance these considerations, when it revisits a precedent this Court has traditionally considered “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.” 590 U.S. 83, 105-106. Casey and the Dobbs dissent rely heavily on reliance. I disagree that reliance interests should matter at all in questions of constitutional interpretation. That is a policy arguement for legislatures and voters, not for unelected judges.
I believe the only thing that should matter when revisting prior precedent is whether the interpretation was incompatible with the Constitution. I think the majority in Dobbs fleshed this out well.
That said, I found myself agreeing with large parts of the Dobbs dissent. Although, I found the language regarding other substantial due process decisions being on the chopping block to be inappropriate and unwarranted. However, the portions I did agree with were not constitutional arguments regarding why Roe and Casey were correct. The dissent instead focused on the importance of abortion access and utilized figures to show a substantial amount of women access this care in their lifetimes. This is, however, something that must be left to the legislature, and if needed, the constitutional amendment process.
To conclude, legitimacy, public reaction, reliance, and policy arguements should not be the canons upon which whether precedent should be upheld. But rather, was the prior decision incompatible with the constitution? I believe Dobbs got that correct.
I wonder how my reasoning, or the cases since Roe, may differ if Roe was decided according to Equal Protection rather than Due Process.
The philosophical underpinning of Casey is beautiful but horribly misplaced. Oft-quoted, it has served as a punchline just as much as an aspiration, depending on which judge wields it. The majority ought to have seen the weakness they were threading into precedent by basing the decision on this amorphous design that strangely mirrors a natural law mindset. The 'undue burden' standard further confused the available restrictions and caused accessibility issues to proliferate. In the end, it was inevitable that Casey would eventually lead to such a reduction in availability for abortion that the procedure would have, in effect, been banned for much of the country, even if Dobbs had never come to pass.
Good points! Consider this though: Casey’s ambiguous language is partly why it lasted three decades; it gave both sides just enough to hold onto, even as states tested the limits. In a way, the very vagueness you describe is what kept the fight alive until Dobbs finally closed the door.
I find the fact that the government is not required to fund an abortion to be the biggest loophole I have seen through all of these readings. It is a way for the government to give citizens what they wanted, while also making it unreachable for some woman who need these abortions, such as woman of color or of low income. This strategy used by the government opened my eyes to other legal issues, such as the right to legal representation in court, causing low-income citizens facing legal issues to be impacted by the inability to afford the legal fees coupled with such representation - representing another legal loophole.
There is a "right/remedy gap," where the Constitution recognizes a right but doesn't guarantee the practical means to exercise it. The Supreme Court consistently holds that constitutional rights protect you from government interference, but don't require the government to help you exercise those rights. When rights depend on private resources, they become stratified by class and race; the wealthy can always access what they need while the poor face constitutional double standards.
Some states (like California and New York) choose to fund abortion services, and nonprofits have stepped in, but federal law (like the Hyde Amendment) limits national funding. Congress has debated changes, but none have stuck. So while there are efforts to close the gap, the overall constitutional rule hasn’t changed: rights exist, but resources to use them are not guaranteed.
More generally - In the U.S., most rights are protections from government interference, not guarantees of help to exercise them (this is the difference between negative and positive rights), unlike in many European countries that require governments to provide basic services.
Also worth noting - Abortion funding is especially complex because requiring public funding would place the government on one side of a very contentious moral debate. So this is about more than negative v. positive rights - it's about what message the government sends when it funds one side of a debate.
I quite enjoyed class today, and I believe the classification of abortion as a negative right was the constitutionally correct interpretation under Harris and Maher. However, I did not find the majority opinion of Casey or dissent in Dobbs to be particularly compelling. Both opinions stress the importance of stare decisis. I think this assertion is especially weak because both Justices Breyer and Sotomayor voted to ignore stare decisis and overturn a 50 year precedent of Apodaca v. Oregon in Ramos v. Louisiana, 590 U.S. 83. - Which was decided just two years before Dobbs.
Justice Gorsuch wrote in Ramos, "But stare decisis has never been treated as “an inexorable command.” And the doctrine is “at its weakest when we interpret the Constitution” because a mistaken judicial interpretation of that supreme law is often “practically impossible” to correct through other means. To balance these considerations, when it revisits a precedent this Court has traditionally considered “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.” 590 U.S. 83, 105-106. Casey and the Dobbs dissent rely heavily on reliance. I disagree that reliance interests should matter at all in questions of constitutional interpretation. That is a policy arguement for legislatures and voters, not for unelected judges.
I believe the only thing that should matter when revisting prior precedent is whether the interpretation was incompatible with the Constitution. I think the majority in Dobbs fleshed this out well.
That said, I found myself agreeing with large parts of the Dobbs dissent. Although, I found the language regarding other substantial due process decisions being on the chopping block to be inappropriate and unwarranted. However, the portions I did agree with were not constitutional arguments regarding why Roe and Casey were correct. The dissent instead focused on the importance of abortion access and utilized figures to show a substantial amount of women access this care in their lifetimes. This is, however, something that must be left to the legislature, and if needed, the constitutional amendment process.
To conclude, legitimacy, public reaction, reliance, and policy arguements should not be the canons upon which whether precedent should be upheld. But rather, was the prior decision incompatible with the constitution? I believe Dobbs got that correct.
I wonder how my reasoning, or the cases since Roe, may differ if Roe was decided according to Equal Protection rather than Due Process.
The philosophical underpinning of Casey is beautiful but horribly misplaced. Oft-quoted, it has served as a punchline just as much as an aspiration, depending on which judge wields it. The majority ought to have seen the weakness they were threading into precedent by basing the decision on this amorphous design that strangely mirrors a natural law mindset. The 'undue burden' standard further confused the available restrictions and caused accessibility issues to proliferate. In the end, it was inevitable that Casey would eventually lead to such a reduction in availability for abortion that the procedure would have, in effect, been banned for much of the country, even if Dobbs had never come to pass.
Good points! Consider this though: Casey’s ambiguous language is partly why it lasted three decades; it gave both sides just enough to hold onto, even as states tested the limits. In a way, the very vagueness you describe is what kept the fight alive until Dobbs finally closed the door.
I find the fact that the government is not required to fund an abortion to be the biggest loophole I have seen through all of these readings. It is a way for the government to give citizens what they wanted, while also making it unreachable for some woman who need these abortions, such as woman of color or of low income. This strategy used by the government opened my eyes to other legal issues, such as the right to legal representation in court, causing low-income citizens facing legal issues to be impacted by the inability to afford the legal fees coupled with such representation - representing another legal loophole.
There is a "right/remedy gap," where the Constitution recognizes a right but doesn't guarantee the practical means to exercise it. The Supreme Court consistently holds that constitutional rights protect you from government interference, but don't require the government to help you exercise those rights. When rights depend on private resources, they become stratified by class and race; the wealthy can always access what they need while the poor face constitutional double standards.
Have there been any attempts to fix this issue in recent years?
Some states (like California and New York) choose to fund abortion services, and nonprofits have stepped in, but federal law (like the Hyde Amendment) limits national funding. Congress has debated changes, but none have stuck. So while there are efforts to close the gap, the overall constitutional rule hasn’t changed: rights exist, but resources to use them are not guaranteed.
More generally - In the U.S., most rights are protections from government interference, not guarantees of help to exercise them (this is the difference between negative and positive rights), unlike in many European countries that require governments to provide basic services.
Also worth noting - Abortion funding is especially complex because requiring public funding would place the government on one side of a very contentious moral debate. So this is about more than negative v. positive rights - it's about what message the government sends when it funds one side of a debate.