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SG Argues There Is No Middle Path in Dobbs

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Josh Blackman | 9.21.2021 12:45 AM

Today the Solicitor General filed a brief in Dobbs. The government argues that there is no middle path. According to the United States, there is no way to uphold the Mississippi law without overruling Roe and Casey.

Petitioners devote most of their brief to urging the Court to repudiate all constitutional protection for abortion. In their view, a woman's interest in deciding for herself whether to carry a pregnancy to term merits no greater constitutional protection than social and economic rights that trigger rational-basis review. But petitioners also briefly assert (Br. 45-49) that if this Court "is not prepared to reject heightened scrutiny" altogether, it should uphold the Act on one of two purportedly more modest "alternative[]" grounds.That modesty is illusory. Both of petitioners' alternatives would still require the Court reject the viability rule, which is "the most central principle" of Roe and Casey. June Medical, 140 S. Ct. at 2135 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 871 (plurality opinion)). Taking that step would carry all of the stare decisis harms identified in Casey.

This strategic choice is significant. Indeed, the SG seems to agree with Sherif Girgis that there is no half-loaf approach. The government is putting the Roberts Court to a choice: uphold the Mississippi law or uphold........

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