Dobbs on the Docket: How Will the Supreme Court Decide?
An Interview With Law Professor Helen Alvaré
Listen to this interview on the Nov. 27 edition of Register Radio here:
On Dec. 1, the U.S. Supreme Court heard what some say is the most consequential abortion case in a generation: Dobbs v. Jackson Women’s Health Organization. The question on the minds of many is: Will this lead the Supreme Court to overturn Roe v. Wade?
Professor Helen Alvaré of George Mason University School of Law spoke in advanced of the hearing to the Register’s editor in chief, Jeanette De Melo, on Register Radio about what’s at stake in this pivotal moment.
In an amicus brief in support of the Mississippi law, Alvaré and co-authors Erika Bachiochi of the Ethics and Public Policy Center and Teresa Collett, professor at University of St. Thomas School of Law, countered the narrative put forward by the plaintiffs in Dobbs v. Jackson Women’s Health Organization that women need abortion to succeed and achieve equality with men. More than 240 other women scholars, advocates and professionals signed the brief.
As one of a whole generation of pro-life lawyers who came of age in the wake of Roe, you have devoted much of your professional life to overturning this law. What does this moment mean to you?
Well, I told my husband to get ready for us to turn over our own car and set it on fire if we win.
I was always conscious of the issue, because I was raised in an “aware of the news” Catholic home. Roe came down when I was near 13.
I came to work at the U.S. bishops’ conference [in 1987] without any activism on the issue. And I was asked to go through the pro-life files in response to a document production demand. We were sued by one of the men who founded National Abortion Rights Action League who actually claimed we had messed in politics. And so I was told to go through every single document in the pro-life office file since the invention of the pro-life office. That was my first big task as an attorney [in the general counsel office] with the U.S. bishops’ conference.
I read these documents, and what struck me was that the present law was lawless. I mean, really, even in the last trimester, every state must permit abortion if the mother’s “life or health is at stake,” and health is defined to include even psychological distress and unhappiness with being pregnant.
So, I’m thinking, we have unlimited abortion. I’m reading the arguments from both sides. And from the very beginning of looking through those files, I saw it as a matter of the movement for truth. That’s why I’ve never seen it as a single issue. It was the movement for reason, empirical evidence, science — use your eyes; use your heart; and use them all together.
Why did the Supreme Court pick the Dobbs appeal when there are so many other cases that they could have chosen to review?
That’s a great question. Let me make a background point. When the Supreme Court renders a decision on something as big as abortion and claims the Constitution says X, one of the ways we know that decision is wrong — in addition to it really bearing no relationship to the actual history or tradition of the country or the language of the Constitution — is that the country doesn’t accept it.
And so, you get hundreds, sometimes thousands, of bills proposing to become laws to basically chip away at or overthrow Roe v. Wade and the 1992 case that affirmed it, Planned Parenthood v. Casey.
So, right away, when you have that much upset and backlash to an opinion, one of the grounds of what we call stare decisis — the court should respect prior opinions — is missing. And what is that? The ground that the country has accepted this opinion, and the Court does not have to act like a legislature constantly drawing these fine lines between what is and is not allowed. So that’s kind of a backdrop to say, “Yeah, there’s hundreds of laws that could have come before the court.”
What’s important about the current time has two sides: One, pro-life groups decided, perhaps there were enough Justices on the Supreme Court now who don’t “make stuff up,” who actually read the Constitution, and don’t read rights into it that are completely contrary to it. They respect both the text of the Constitution and the history and tradition of the country. So there were people who saw that and said, “Now’s the time to bring a case up.”
And then on the side of the Court, there are many reasons why they accept some cases and reject others. But the import of this case is that it bans abortion at a time when abortion is not only protected, but that prior decisions have said there’s almost no state interest that could overcome a woman’s interest in having the abortion — that is in the second trimester, [ending the life of] a 15-week, unborn human being.
The question formally presented in the brief: Can a state regulate or even prohibit abortion in the second trimester, pre-viability? This is a direct attack on Roe and Casey.
And a lot of people believe the Court wouldn’t have taken it if [they were going to affirm] what the law is — i.e. all abortions are okay. People believe they took it in order to say something different.
The Biden administration argued that the Mississippi law is something of a “profound intrusion on her … equal standing women in society.” But I think you would say that’s one thing that isn’t at stake here, and certainly the amicus brief you filed says as much.
Yes. The backdrop is that Roe did not invent the abortion right because it said it was necessary for women’s equal protection. It invented it because it said that people being free regarding decisions about childbearing is a part of some privacy guarantee that is not in the text of the Constitution, but implied by the Due Process language in the 14th Amendment.
But in Casey v. Planned Parenthood and later cases, you began to get language, from Justice O’Connor (and in a later case from Justice Ginsburg), that women’s equality in society is at stake with abortion. What did they mean? Well, they were really vague.
And what they seem to indicate — they didn’t really give any supporting footnotes with any actual empirical material but instead used pro-choice political scientists and lawyers who just raised their fist and said the same, but without the actual empirical data — is that if women did not have the right to destroy a developing life in the womb, their child, they will not be seen as equals in society; they won’t make their economic and educational way forward.
So Teresa Collett, Erika Bachiochi, Elizabeth Kirk and I decided that even though that wasn’t the actual legal basis for Roe and Casey, it loomed so large in the Court’s mind that we should address that argument head-on, which is what we did with a highly empirical brief that shows that even women’s material success in society is not due to a right to extinguish the lives of their children.
What is some of that evidence that you speak to? The United States has one of the most liberal abortion laws in the world. And so others are following evidence in other countries more so than we are?
Again, a couple of things: One, most countries had a democratic process where you could actually put forward arguments in the course of a legislative debate. We in the United States had unlimited abortion rammed down our throats by seven men on the Supreme Court in 1973 … without evidence, with individual justice’s own personal perspectives on the science and on the justice of it. But other countries have debated this. I also think the argument that we are among just a tiny fraction of countries that allow abortion to this extent is a powerful argument, and it was made in another amicus brief that I think should influence the Court.
Our arguments were as follows: The other side is basically claiming, “If you don’t have babies, you can make more money and get a better education.”
What we did was a couple of things. No. 1: We looked at the major studies where they made that claim, which are summarized in a book called The Turnaway Study. It was funded by abortion advocates at an abortion-advocacy university and published in abortion-advocacy journals. And they claim to show that women who were turned away from having late-term abortions at clinics had far better economic and educational and life outcomes than women who got their abortion.
What we showed was that the The Turnaway Study was absolutely bunk. A bunch of the women who it said didn’t get abortions actually went and got them at another clinic. A bunch of the women who got abortions turned around and did what we in the pro-life movement see so often and they had a replacement child. So the idea that they were comparing women who didn’t have abortions with women who did turned out to be completely muddled.
Plus, so many of the women who were super distressed at their abortion dropped out of the study. The vast majority dropped out, — and we know that the most troubled women drop out of these studies because they don’t want to talk about their abortion for the next five years — so that means women who were most upset with their abortion were not mentioned.
Second, we noticed something really interesting: Abortion rates and ratios in the United States dropped like a stone after 1990. Every year, you had fewer women per 1,000 of childbearing age, and you had fewer abortions per total number of pregnancies. And, in fact, since 1990 to today, those figures have dropped by 50%. But we noticed that, during that time, all of women’s accomplishments were soaring.
So, while they were getting fewer total abortions, fewer abortions per 1,000 women of childbearing age and fewer abortions per pregnancy — that is bringing forth more children to birth — women continued to gain in graduate education; undergraduate education, in which they have now exceeded men; women got more judgeships, more state legislative positions; women’s economic outcomes went way up; and women’s founding of businesses soared.
So, in other words, even though it was the case that women’s social statistics were improving in the 1970s — by the way, remember, we had the benefit of the civil-rights laws and a raft of feminist legislation advancing women at work, at home, at school, and we charted all of that in the brief — so, yes, women’s social position was increasing then while abortion rates and ratios were increasing; but then when abortion rates and ratios dropped like a stone, women continued to soar.
Then, finally, we pointed out that the study’s claims had all kinds of scientific flaws. In large part, really what you were seeing was they were conflating the effects of contraception and abortion, or they were drawing correlation but not causation. Anyway, we made a whole host of scientific observations about those studies as well. So it was a very packed brief. It has dozens of pages of appendices that are just numbers and charts.
Everybody wants a crystal ball to see what the Supreme Court will decide. What are the possible outcomes?
This is the game, and none of us really knows the answer. The Court would not likely have accepted the case if it was just going to say, “We don’t have to look at this — the law is set.”
So what might they do? Some major possibilities include, No. 1, they find a way to leave Roe and Casey in place, but say, “Yes, there is a constitutional right to abortion, but the states have interests that can trump even constitutional rights.” I mean, the state can trump your free speech, your religious freedom sometimes, and it can also trump your freedom to have an abortion in cases where the state’s interests are compelling. And they could begin to say the state’s interests in stopping abortion become compelling earlier than prior cases had recognized — that is, the state’s interest in recognizing and protecting human life.
Another possibility is that they say, what we hope they will all say, which is that Roe and Casey were completely made up. They are fiction. The way to determine whether a right exists that is nowhere in the text of the Constitution is not to just take a poll of nine unelected Justices and say, “How do we feel today?” but, rather, it’s to look at the history and tradition of the United States beginning when the 14th Amendment’s Due Process guarantee was applied to the states … and say, “Is it the case in the United States that we have assumed a right to abortion so axiomatically that almost nobody would counterman the conclusion that, of course there’s a right to abortion in the Constitution?” No, that’s obviously not the case.
You would actually look at the test for finding non-textual constitutional rights — that is, is this right so much a part of the history and tradition of the United States, — like parents deciding about their children’s schooling, parents teaching their children a foreign language, blood relatives living together — I mean, those are the kinds of things they have found previously as non-textual constitutional rights. Is abortion like those? No. Abortion was banned in every state and territory for most or all of pregnancy, for most or all reasons. It’s a matter for the state. It was never meant to be a coast-to-coast, deeply cherished constitutional right. That’s what we hope they say, to really read the Constitution correctly.
Editor’s note: This interview transcript was edited for clarity. Listen to the full interview on the Register Radio podcast here: