Volume 20

Misreading and Transforming Casey for Dobbs

by Sherif Girgis

In Dobbs, Mississippi has asked the Supreme Court to uphold a fifteen-week abortion ban by overturning Roe and Casey. Some have proposed that the Court could instead uphold the ban under Casey’s undue-burden test, on the ground that a law that leaves women a fair opportunity to choose whether to abort (here, up to the fifteenth week) creates no undue burden. Many have noted that this proposal would flout Casey’s rejection of undue burdens until viability, which comes long after fifteen weeks. This essay focuses on another problem: that the proposal would transform the meaning of the phrase “undue burden” itself, and with it the entire logic of abortion rights. Whether ultimately sound or not, a fair-opportunity ruling could not rest on stare decisis.

Casey uses “undue burden” in a synchronic sense, referring to laws that make abortion too hard to get at this or that point in pregnancy. By contrast, a fair-opportunity ruling would read “undue burden” as a diachronic test, which courts could apply only by looking at the law’s impact over this or that period of time. (Specifically, Casey uses “undue burden” to refer to any incidental regulation of the procedure at some point that prevents abortions almost as much as a ban at that point; Dobbs would read the phrase to denote actual bans that cover too long a stretch of the pregnancy.) And the change would be more than semantic. Dobbs’s “undue burden” concept would perform a completely different doctrinal function and bring in tow a novel constitutional rationale for the resulting abortion right. Leaving nothing of Casey’s (or Roe’s) logic intact, this approach could not claim support in stare decisis, whatever its other merits. The contrary impression is traceable to enduring misreadings of Casey by supporters and critics alike. So, clarifying exactly why Dobbs cannot rely on Casey will shed new light on that pivotal precedent.

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