The Dobbs decision and what it held
Clark Neily, described as Vice President for Criminal Justice at the Cato Institute, stated that Dobbs v. Jackson Women’s Health Organization held that there is no constitutional right to an abortion, overruling about 50 years of Supreme Court precedent beginning with Roe v. Wade, which had held that there is a constitutional right to have an elective abortion. Five justices, he said, held that this is not a plausible way to read the Constitution and that Roe and Casey must be overturned. Judicial Round-Up with Clark Neily (2022)
Bob Zadek framed the decision for listeners as one that overruled and undid the effects of the two major abortion cases, including Casey, ending 50 years of what he called a Supreme Court-created abortion regime. He pushed back on the claim, which he attributed to pundits and elected officials, that the Supreme Court had taken away the right to have an abortion. Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022)
Neily declined to treat as mere hair-splitting the question whether Roe created rather than protected a right. He described the recurring pattern in which the Court protects an unenumerated right — one not specifically articulated in the text of the Constitution — and said that the right to travel around the United States and the right to guide the upbringing of one’s own children are nowhere mentioned in the constitutional text yet have been enforced by the Supreme Court for over a hundred years. On abortion, he said, some people think the ability to terminate a pregnancy is among the unalienable natural rights and others think it is not, and he and Jay Schweikert argued in a piece for Cato’s blog that reasonable libertarians can see it either way, with powerful arguments and powerful objections on both sides. Judicial Round-Up with Clark Neily (2022)
The post-Dobbs landscape and foot voting
Evan Bernick predicted that abortion law the morning after a Dobbs majority would look like a checkerboard, because different states are dominated by different political parties with very different views on abortion. Democratic states, he said, would effectively serve as sanctuary states for people traveling away from states in which abortion is banned, and because those most affected and with the resources to move would leave, there would be less political demand within generally anti-abortion states for leniency — producing more severe abortion laws where abortion is banned and more permissive laws where it is supported. Evan Bernick on the Dobbs Draft (2022)
Zadek drew an analogy to right-to-work laws, minimum wage laws and concealed carry laws, under which employers and workers move based on which state is more hospitable, and noted that the analogy breaks down because the Constitution can be argued to have something to say about guns while it has nothing to say about abortion. He described two remedies for those who dislike their state’s law: the ballot box, and what he called foot voting, which he attributed to Ilya Somin and others — taking one’s business of citizenship elsewhere. He said that on the first morning after Dobbs, everybody would have access as a matter of law to an abortion by their own behavior, though they might have to move temporarily, becoming medical tourists, since abortion is after all a medical procedure. Evan Bernick on the Dobbs Draft (2022)
Bernick added that some people are more able to travel than others because some have more resources, so the possibility of foot voting is contingent on things other than whether a nearby state exists. He described the reliance interest discussed in Dobbs: for half a century one could depend on traveling to any state, including a nearby one, and even remain in one’s own state and terminate a pregnancy within the first trimester, and that would no longer be a reality. He contrasted this with Heller, where states had gun laws more restrictive than the Constitution provided and Heller guaranteed, at least theoretically, that one could exercise the right to bear arms anywhere in the country. Evan Bernick on the Dobbs Draft (2022)
Fetal personhood and future litigation
Zadek asked whether the rights of the unborn, addressed in Roe and Casey, leave a constitutional issue in which permitting abortion is itself unconstitutional because it allows a person to kill another person, albeit the unborn. Evan Bernick on the Dobbs Draft (2022)
Bernick answered that it would be a mistake to assume the question has been taken off the table by a decision returning abortion to the states. He noted that the Court refers throughout to states’ valid interest in fetal life, draws a distinction between abortion rights and other rights on the perception that only abortion arguably involves the rights of another being, and favorably cites scholars who have publicly argued on originalist grounds for fetal personhood as a constitutional matter. Because of the moral urgency of the issue and the view among many pro-life advocates that abortion, like slavery, is not something to be voted up or down, he expected arguments based on the original meaning of the Due Process Clause and the Equal Protection Clause not only that there is no right to an abortion but that states are obliged to penalize and criminalize it. Even if the Court wants to get out of the abortion business, he said, it will not be entirely able to. Evan Bernick on the Dobbs Draft (2022)
Federalism, moral seriousness and sorting
F.H. Buckley said he liked the abortion decision because it brought back an element of moral seriousness to the debate, and that as a small-d democrat he liked diffusing the culture wars by making people talk to each other. He predicted that states like Virginia would not abolish abortion completely but would make it illegal after a stated point, and that this kind of debate would have to happen once the issue returned to the realm of politics and away from the Supreme Court. Progressive Conservatism with F.H. Buckley (2022)
Buckley placed this within a broader argument for devolution: a libertarian will like devolving some powers to the states because it permits and promotes jurisdictional competition, and to the extent the Supreme Court returns powers to the states that is a good thing, producing sorting and competition. He acknowledged a debt to Frederick Jackson Turner, which he said Ilya Somin never did. Progressive Conservatism with F.H. Buckley (2022)
Across episodes: the same question in successive episodes
The topic recurs across the 2022 episodes without a change in the underlying question: Bernick, in the earliest treatment, projected the post-Dobbs checkerboard and the coming fetal-personhood arguments; Neily, in two later episodes, restated what Dobbs held and located abortion among the unenumerated rights on which libertarians may reasonably differ; and Buckley, in the last, welcomed the return of the issue to politics and jurisdictional competition. The excerpts show development in emphasis — from prediction, to doctrinal restatement, to political approval — rather than a shift in the terms of the argument.
What the sources do not cover
The excerpts do not state the text or reasoning of the Dobbs draft itself, nor the identity of the justice who wrote it. They do not describe the facts or procedural posture of Dobbs v. Jackson Women’s Health Organization beyond the holding Neily states, and they do not name the state whose law was at issue. No excerpt states the content of any state abortion statute, the name of any bill, or the terms of Roe’s trimester framework beyond Bernick’s reference to terminating a pregnancy within the first trimester.