Not only Dobbs v. Jackson. Abortion laws and private enforcement

Abstract

Abstract: At the end of the 2022 Term, the US Supreme Court handed down three important decisions that, taken together, can be considered a sort of manifesto for the conservative ideology of the present majority: Dobbs v. Jackson, New York State Rifle and Pistol Association v. Bruen, West Virginia v. Environmental Protection Agency.

Of the three decisions, Dobbs is the one that has been mostly commented, analyzed, and criticized for various and important reasons. Dobbs fiercely overrules two longstanding precedents defining them “egregiously wrong”. Dobbs deepens state by state health inequities by overturning a 50-year understanding that the XIV Amendment protects a right to privacy that includes abortion, among other intimate decisions. Moreover, the Dobbs majority is committed to Due Process Traditionalism according to which other unenumerated rights, such as those related to the most intimate sphere of individual life, are probably at risk.

In order to have a complete understanding of it, Dobbs must be placed within the complex net of litigation that took stage both at the federal and state level – a drama that ended with Alito’s majority opinion. And state laws different from the one challenged in Dobbs must also be taken into consideration. Through the analysis of this intricated net, Whole Woman’s v. Jackson, decided a few months before Dobbs, becomes of great importance. At issue in Whole Woman’s was a Texas statute that prohibited abortion after a fetal heartbeat is detected and that does not allow state officials to bring criminal prosecutions or civil actions to enforce the law but instead directs enforcement through “private civil actions”.

The unprecedented way in which the Texas statute is framed can be dangerous for reasons going far beyond the abortion issue. In the first place, the Texas statute creates a bounty-hunting scheme that encourages the general public to bring harassing lawsuits against anyone who they believe has violated the ban. Secondly, the statute, in excluding from enforcement state officials, seems to be designed as a maneuver to avoid federal court review. The Supreme Court had the occasion of evaluating the constitutionality of statutes framed with the scope of evading judicial review. Instead, Whole Woman’s Health v. Jackson was decided on very technical procedural grounds and carefully avoided all the crucial issues present in the case.

Dobbs is a dramatic decision for women’s rights and perhaps for the future of other fundamental rights protected under a substantive reading of the XIV Amendment.

But Whole Woman’s can be dangerous for the future of judicial review.

Keywords: US Supreme Court, abortion, fundamental rights, unenumerated rights, judicial review, private enforcement, traditionalism, originalism