 |  |  |
| 0:00 | -1:09:56 |
It's an almost-all-Dobbs podcast, as David and Sarah discuss the oral argument that surprised the nation. Could Roe v. Wade and Planned Parenthood v. Casey actually fall? David and Sarah talk about the court's decision-making process from here and the history of judge-flipping post-argument, and they identify the key moments in yesterday's argument. Also, they give their listeners a vital challenge--and if they can meet that challenge, then Advisory Opinions will be the indisputable flagship of the Dispatch podcast fleet. Listen to learn what the challenge is.
Show Notes:
-Dobbs v. Jackson oral argument transcript
To say as both David and Sarah suggested that, to be pro life means to support various programs supporting single mothers does not follow.
In the same way, as being pro-abolition does not require support for reparations.
To make that statement, is to assume those policies are pro life, without arguing for it. This is like saying anyone who wants better access to medical care. Must support more money for Medicare and Medicaid.
The definition of pro life in the abortion debate is, “we should not kill innocent human beings.” That’s it.
That being said, I’m not necessarily opposed to those different policy ideas. But I have strong reactions against the accusation that simply because you are against abortion and pro-life, you must support X or Y policy. That needs to be argued.
First off: GREAT show, one of AO's very best, notwithstanding extremely fraught and complicated subject matter.
But I have a question, and I apologize in advance that it's way down in the legal weeds:
I listened with keen interest to Ms. Isgur's and Mr. French's description of the doctrine of stare decisis and the role within its application played by "justifiable reliance." As they both noted, courts that have adhered to precedent and honored the doctrine of stare decisis have often done so in part because of an equitable estoppel sort of argument, which goes like this: Lots of people have been and still are relying on this precedent; it was and remains reasonable for them to do so; and given that they've changed their positions to their possible detriment based upon that reasonable reliance, we shouldn't overrule the precedent being reconsidered.
But I genuinely don't know why Ms. Isgur, at least, seemed certain that the time-frame that's relevant is the one which runs from the initial announcement of the precedent (here, Roe in 1973, as heavily revised by Casey in 1992) to the present day. That seems to me the wrong frame of reference. The question must be asked, I'd contend: How exactly did the detrimental reliance take place? Who exactly at any given time are the people who have relied to their detriment, and what would the exact effects be upon those people if the precedent is now overruled? When was the decision made to rely in a way that would, if the precedent is overruled, make it unfair to the reasonable relier?
It seems to me that the longest possible time period over which any individual woman, with respect to any individual pregnancy, may have acted in justifiable reliance upon the SCOTUS' position regarding a constitutional right to abortion (Roe/Casey) is nine months: Before she became pregnant, her situation regarding the termination of a pregnancy was hypothetical, and she'd have lacked standing to sue. Ten months later, whatever happened in the interim, she's no longer pregnant.
Stated another way: At any given moment — such as the moment when the SCOTUS makes a decision whether to overrule or whether instead to follow stare decisis — the class of persons who could, in theory, have ordered their personal life affairs (e.g., in making choices regarding contraception and conception) in justifiable reliance upon Roe/Casey — in a non-theoretical way which would give them standing to sue, i.e., only persons for whom an unwanted pregnancy has occurred, who immediately prior thereto had acted based on a reasonable belief that if they became unwantedly pregnant they could count on being able to exercise a purported Roe/Casey constitutional right to obtain an abortion) — contains no member who's been in that class for more than nine months. We're therefore not talking about a large number of persons relative to the total country, and therefore this reliance factor counts little in the stare decisis decision matrix for Roe/Casey. Or so would go this argument.
It's hard, in fact, to think of a constitutional principle which would have an equally transitory class of persons entitled to claim an alleged violation of constitutional rights. This is sort of the flip side of the CORYER — capable of repetition, yet evading review — doctrine that let Roe avoid mootness to begin with, since by the time her case was decided she was no longer pregnant.
If, say, on June 1, 2022, a SCOTUS majority squarely overrules Roe and Casey, only those women who had become pregnant in the nine preceeding months could be in the class of persons who'd reasonably relied upon Roe/Casey AND had a live/non-moot case or controversy. No one who becomes pregnant AFTER June 1, 2022 (in this hypothetical) can reasonably claim to have done so in reliance on Roe/Casey, because by and after that date, Roe/Casey (in this hypothetical) has been overruled, And the pregnancy of anyone dating back more than nine months can be conclusively presumed to have been concluded already.
I'm perfectly eager for someone who's actually briefed and argued this reliance issue to explain to me why I'm off base. I confess that I haven't read any of the briefing of the litigants and countless amici who've addressed the reliance component of stare decisis; nor have I even re-read Casey (which makes me grit and grind my teeth EVERY time I read it) to review its discussion for inferences about the relevant time-frame and class of reasonable detrimental reliers. Perhaps Ms. Isgur's correct about the relevant time frame extending beyond any hypothetical single person's pregnancy all the way back to 1973. But that sure isn't the framework we use in other justifiable reliance situations and contexts (e.g., promissory estoppel).
And if you're looking for a way to say "stare decisis lets us overrule Roe/Casey but doesn't threaten Obergefell," this approach works brilliantly for that: No one is pregnant for more than nine months. Women who are potentially fertile make not a single decision, but rather re-evaluate at least tacitly every month their decisions about sexual activity, contraception, and conception. But by contrast, people make decisions about marriage with the reasonable expectation and hope that it's a lot longer than that — perhaps even 'til death do they part. Those who've married in reliance on Obergefell reordered their entire lives, with consequences expected to be played out potentially over decades, in ways that it would now make it fundamentally unfair to pull the rug out from under them.