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2022 Regent Univ. L. Rev. Pro Tempore [i] (2022)

handle is hein.journals/regunlwre2022 and id is 1 raw text is: 2022 Regent University Law Review Pro Tempore No. 1 IS VIABILITY DICTA? Christopher Mills*, Blake Davist & Richard Osbornet ABSTRACT For nearly half a century, no legal issue has sparked as much debate as abortion. But near-universal agreement has reached one point: the viability rule announced by the Supreme Court in Roe v. Wade and reiterated in Planned Parenthood v. Casey is the core holding of the Court's abortion jurisprudence. Yet at oral argument in Dobbs v. Jackson Women's Health Organization, Chief Justice Roberts floated the theory that the viability rule was never a holding after all. Relying on the personal papers of Justice Blackmun, Roe's author, Chief Justice Roberts claimed that Justice Blackmun said that the viability line . . . actually was dicta. Chief Justice Roberts went on to say that because the regulations in Roe and Casey did not depend[] upon where viability was, the Court did not have to address the line-drawing at all in those cases. Whether the viability rule is a Supreme Court holding is of central importance to the Court's resolution of Dobbs, which asks [w]hether all pre-viability prohibitions on elective abortions are unconstitutional. If the viability rule has been, for nearly fifty years, mere dicta, the Court could answer the question in Dobbs and dispose of the viability rule while claiming adherence to stare decisis. That route-which would presumably change the focus to whether abortion laws impose an undue burden generally-has its own difficulties, as Professor Sherif Girgis has explained. Presumably those difficulties are why all parties in Dobbs focused on the core issue of whether abortion is an unenumerated constitutional right, with the abortion providers (echoed by the United States) proclaiming that there are no half-measures here. This Article, however, focuses on whether reading the viability rule as dicta is convincing in light of abortion jurisprudence over the last fifty years. Though Chief Justice Roberts and one scholar (Professor Randy Beck) have presented some arguments in favor of viewing the viability rule as dicta, especially in Roe, the near- universal view is that the viability rule is a core holding of the Court's abortion jurisprudence. In a recent article, Professor Eric Claeys convincingly shows that under the Court's overbreadth doctrine, at least thirteen of the Supreme Court's abortion decisions are premised on the viability rule, making it a necessary holding. This Article surveys additional evidence-including internal Court communications from * Christopher Mills is an adjunct professor at the Charleston School of Law and principal at Spero Law LLC. He authored an amicus brief submitted in Dobbs v. Jackson Women's Health Organization. Brief for the Am. Coll. Of Pediatricians and the Assoc. of Am. Physicians & Surgeons as Amici Curiae in Support of Petitioners, Dobbs v. Jackson Women's Health Org., No. 19-1392 (U.S. filed July 29, 2021). t Blake Davis is a third-year law student at Wake Forest University School of Law. t Richard Osborne is a third-year law student at Regent University School of Law.