Earl M. Maltz (Rutgers, The State University of New Jersey – Rutgers Law School) has posted The Long Road to Dobbs (Hastings Constitutional Law Quarterly, Forthcoming) on SSRN. Here is the abstract:
For anti-abortion activists, the recent decision in Dobbs v. Jackson Women’s Health Organization was the culmination of a decades-long campaign to reverse the holding of Roe v. Wade and eliminate constitutional limitations on government authority to limit access to abortions. In 1992, despite the fact that the Court was dominated by justices who had been chosen by presidents who had been openly critical of the pro-choice position, these activists had been sorely disappointed by the outcome in Planned Parenthood of Southeastern Pennsylvania v. Casey, in which a majority of the justices had reaffirmed their support for what was described as the “central holding” of Roe. By contrast, the Dobbs majority rejected the undue burden standard that had emerged from Casey and concluded that, henceforth, state laws that restricted abortion rights would be subject only to the traditional rational basis test. This article will describe the events that led to the decisions in both Casey and Dobbs and will argue that both decisions should be seen as byproducts of what I describe as the contingent nature of constitutional law.
And from the conclusion:
The evolution of the Supreme Court’s jurisprudence of abortion rights reflects what might aptly
be described as the contingent nature of constitutional law. When confronted with a case that raises controversial issues, the Court will invariably reach a conclusion that lies somewhere within the mainstream of elite opinion. But within these parameters, the resolution of the dispute will depend on the jurisprudential and political perspectives of the specific justices who are members of the Court at the time that the case is being heard. In other words, the outcome will depend on the makeup of the Court, which will in turn be determined by a variety of factors, including but not limited to the timing of vacancies, the ideological agenda of the president charged with filling each vacancy, the degree of the president’s commitment to making choices who will advance his ideological agenda once on the Court, and the success of the president in identifying candidates who will actually advance that agenda and having those candidates confirmed.
The dynamic that produced the decision in Dobbs provides a dramatic illustration of this point. The case was decided as it was only because Donald Trump was victorious in the 2016 election and (unlike Ronald Reagan and George H. W. Bush before him) was able to fill all of the available seats with justices who were unremittingly hostile to the principles that underlay decisions such as Roe and Casey. If, by contrast, as most observers had expected, Hillary Clinton had defeated Trump in the 2016 presidential election, the current Court would undoubtedly be dominated by justices who were strongly committed to the pro-choice position and the existing constitutional protections for abortion rights would almost certainly have remained intact.
The historical narrative provided by Maltz is essential reading; it is useful, illuminating, and important. Highly recommended. Download it while it's hot!