The Problem with Dobbs and the Rule of Legality
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court reversed decades of precedent to overrule Roe v. Wade and Planned Parenthood v. Casey. In anticipation of the Court’s decision, several states adopted “trigger laws” restricting abortion. These laws were explicitly drafted to take effect if Roe and Casey were overturned. These laws joined pre-Roe “zombie laws” that restricted abortion and were never rescinded by state legislatures despite Roe and its progeny. Collectively, trigger laws and zombie laws are now being used in several states to impose restrictions on reproductive autonomy. This Essay challenges the validity of these laws. Despite their eponymous names, they are not laws. When the Supreme Court affirmed the right to abortion in Roe and reaffirmed that right in Casey, any inconsistent state laws were voided. When states adopted laws contrary to Roe and Casey in the hope of future reversal, these laws were void ab initio. Dobbs did not and could not resurrect these laws. Prosecution under trigger laws or zombie laws would violate the rule of legality—there is no crime in the absence of a duly enacted law. Until state legislatures adopt de novo restrictions on reproductive autonomy, courts should reject any effort to rely on outdated and void legislation.
Continue reading The Problem with Dobbs and the Rule of Legality.