The holding attributed to Casey
In this episode, Evan Bernick states that Roe v. Wade and Planned Parenthood v. Casey held that the 14th Amendment protects a woman’s right to choose to terminate a pregnancy as a matter of constitutional law. He further states that Casey specified that states could not ban abortion outright during the period before a fetus is viable outside the womb, making state bans pre-viability categorically unconstitutional. dobbs_decision_and_the_future_of_abortion
Bob Zadek frames the constitutional question in terms of the political process, asking Bernick whether Dobbs simply says to the political process that it decides whether abortion is criminalized, prohibited, or allowed, with the Constitution having no stated opinion on that process. Bernick responds that Bob’s statement is very good. dobbs_decision_and_the_future_of_abortion
The draft Dobbs opinion and Casey
Bernick states that the draft Dobbs opinion holds that Roe and Casey were wrong when they were decided, that they are inconsistent with the Constitution and with the meaning of the 14th Amendment, and that it overrules them. He states that the draft returns the issue of whether or not to ban abortion to the states, which means in practice there will be a significant number of states that permit abortion and a significant number that ban it outright. dobbs_decision_and_the_future_of_abortion
Bob Zadek observes that if the final Dobbs decision resembles the draft, the decision does not ban abortion; rather, it says to the political process that it decides whether abortion is criminalized, prohibited, or allowed. Bernick agrees with Bob’s framing. dobbs_decision_and_the_future_of_abortion
Trigger laws and congressional power
Bernick adds that a number of states have in effect already decided to ban abortion as soon as Roe and Casey have been overruled, through trigger laws that apply upon the contingency of Roe and Casey being overruled. He states that while some states will start from a point of political deliberation about what they should do next, a number of states will be locked in, and the question then becomes whether they want to undo what they have done in anticipation of Roe and Casey being overruled. dobbs_decision_and_the_future_of_abortion
Bernick also states that it is theoretically possible that Congress could pass a piece of legislation designed to protect the right to an abortion. He states that this would not be a constitutional right; Congress would have to rely upon its power probably under the Commerce Clause on the theory that abortion is economic activity, to protect that economic activity within states that are hostile to it. He states that as a federal constitutional matter, the answer to whether one can go into federal court and say one has a right to terminate a pregnancy is going to be no. dobbs_decision_and_the_future_of_abortion
Bob Zadek compares this to federal law that has enacted legislation criminalizing many activities heretofore the province of the states, dealing with alcohol, drugs, and guns, where the federal government acts not because it has the power per se to enact criminal law legislation but because it has to have a hook. He states that given Commerce Clause jurisprudence, the issue of whether Congress can do it is yes, and that they will find a Commerce Clause hook to be able to do that. dobbs_decision_and_the_future_of_abortion
Across episodes
Only one episode in the excerpts, the 2022-05-09 episode with Evan Bernick, touches on Planned Parenthood v. Casey; the excerpts show no development across episodes.
What the sources do not cover
The excerpts do not state the city or state in which the case arose, the name of any bill, the specific amendment other than the 14th Amendment, or the founding date or principle of any organization. The excerpts do not state what Casey’s final holding was beyond the viability specification Bernick describes, nor do they state the outcome of the Dobbs decision in its final form. The excerpts do not state Bernick’s title or field beyond Bob Zadek’s introduction, which is not included in the excerpts.