Prepared remarks: Dobbs and its aftermath (Oct. 17, 2023)
Thank you for the opportunity to join you today. I want to reflect on the Supreme Court’s decision in Dobbs and other cases that bear on a fundamental question—how to view the Court’s role in constitutional judging?
To set the stage, I’d like to begin by reflecting on the U.S. Supreme Court I served as a law clerk. Back in the October 1995 term, the Court had three justices on the left—Justices Stevens, Ginsburg, and Breyer; three justices in the center—Justices O’Connor, Kennedy, and Souter; and three Justices on the right—Chief Justice Rehnquist, and Justices Scalia and Thomas. That Court, because of its composition, did not have an ideological precommitment on key issues involving equality and abortion rights, to name two high profile constitutional issues. Rather, those questions generated serious reflection and led to results in leading cases that reflected carefully on the impact of those affected by Supreme Court cases.
In Planned Parenthood v. Casey, the three centrist judges I mentioned wrote a plurality opinion that concluded that the constitutional right to abortion established by Roe v. Wade was settled law and it would be too destabilizing to overturn Roe. That case was closely watched, as Justices O’Connor, Kennedy, and Souter all had expressed prior doubts about Roe or were believed to be skeptical of the decision. Given the opportunity to overturn Roe, however, all three justices concluded that it would be irresponsible to do so.
The differences between Dobbs and Casey are stark and, indeed, painful. The Dobbs decision represents almost the opposite approach of Casey. In Dobbs, five Justices in the majority ignored Chief Justice Roberts’ plea to focus its decision on the specific legal issue before it—whether Mississippi’s 15-week abortion ban was constitutional. Ultimately, Chief Justice Roberts stood alone, concluding that the Court should have decided only that issue. The five justice majority, by contrast, went far beyond Roberts’ line, instead ruling that the Constitution does not protect access to abortion at all. Consequently, abortion ban laws that endanger the lives of women by preventing access to life-saving health care or bans requiring 12-year old rape victims to continue a pregnancy to term are now in force. And, in the wake of Dobbs, we are now challenging Idaho’s law that restricts a doctor’s ability to communicate honestly with patients about the availability of health care options out of state.
The Dobbs decision’s lack of reflection on or concern about its consequences is emerging as a feature of this Supreme Court. In the Bruen case, for example, the Supreme Court upended its prior test for evaluating Second Amendment challenges to gun safety laws. In the Heller decision, which set forth the principle—for the first time–that the Second Amendment protected an individual’s right to possess and carry guns, Justice Scalia made clear that reasonable regulations were permissible, explaining that:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
In Bruen, however, the Court turned to a different test—whether the restriction at issue is one that existed in 1791. There are a series of difficulties related to this test, including that the mental illnesses Justice Scalia alluded to may not have even been in common awareness in the 18th Century. But it does not appear that the Court was troubled by destabilizing the state of the law and the consequences of that instability. Consider, for example, that in applying Bruen, the Fifth Circuit struck down a federal law preventing domestic abusers—most often men who physically harm their partners—from owning firearms. We are fighting that decision, urging the Supreme Court to reverse the Fifth Circuit ruling and provide some clarity on the constitutionality of a range of gun safety protections.
Let me return to the Supreme Court of the October 1995 Term. In that term, the Court confronted two critical equality cases—Romer v. Evans and United States v. Virginia. The Romer case involved a challenge to Colorado’s Amendment 2, a ballot initiative adopted by the voters that prevented cities from adopting civil rights protections for gay and lesbian citizens. In that case, the Court held that the harm to gays and lesbians from a provision that uniquely and unfairly targeted them violated equal protection. United States v. Virginia involved a challenge to the Virginia Military Institute’s policy of excluding women. In that case, the Court similarly held that VMI’s policy violated the Equal Protection Clause. In both cases, the justices in the Casey plurality joined the more liberal justices to form the majority. And in the VMI case (in which Justice Thomas was recused), Chief Justice Rehnquist joined the result as well in a 7-1 decision.
This past term, in 303 Creative v. Elenis and the twin affirmative action cases, we witnessed outcomes very different from those cases decided in the 1995 Term. In 303 Creative, the Supreme Court recognized, for the first time since the Civil Rights Act of 1964, an exception to the public accommodations provision requiring businesses open to the public to serve all comers. This ruling, as I said in the wake of the decision, threatens to “permit businesses to turn away LGBTQ customers just by claiming that they sell expressive or artistic services. This deeply concerning opinion is far out of step with the will of the American people and American values.” Like that case, the affirmative action cases upended established precent on the legality of affirmative action programs and will force some colleges and universities to change their admissions policies. As to that case, I stated that, “[u]nder this decision, the Supreme Court assigns to itself control over admissions decisions. Contrary to its insistence, this decision will harm university learning environments and force them to adopt second best solutions to adapt to this problematic ruling.”
The challenge we now face is how to approach a Supreme Court that appears poised to act aggressively to overturn precedent and ignore any harmful consequences of its decisions. In the case of Dobbs, the consequences are coming into focus, including many patients enduring life threatening harms because in many states doctors are prevented from providing medical care. What remains to be seen is whether the Court will be influenced by these consequences or whether it will continue to overturn established precedents, such as Griswold v. Connecticut, which protects access to birth control. Indeed, Justice Thomas’ concurrence in Dobbs promised that doing so was only a matter of time.
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When giving a recent talk about the Supreme Court and constitutional law to college students, I was asked an astute question: “what advice would you give to advocates arguing before the Court seeking to prevent the undermining of established privacy and equality rights?” That’s exactly the challenge Justice Ginsburg so masterfully met as an advocate, finding the right cases to convince the Supreme Court to recognize that the Equal Protection Clause protected against gender discrimination. Justice Ginsburg succeeded in that endeavor. Her successors need to defend a vision of the Constitution that advances equal justice for all, considers carefully the impact of its decisions, and builds confidence in the institution itself. At the Colorado Attorney General’s Office, we are committed to doing our part to advance these critical goals.
 Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022).
 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 869 (1992).
 Marc Sallinger, Idaho abortion law that limits travel to places like Colorado gets court challenge, 9News, (Aug. 7, 2023), available at https://www.9news.com/article/news/local/next/next-with-kyle-clark/idaho-abortion-law-limit-travel-to-places-like-colorado-challenged-in-court/73-98f8807d-ea3a-4a77-a494-c53cd92a2b58.
 New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
District of Columbia v. Heller, 554 U.S. 570 (2008).
 Id. at 626–27.
 Bruen, 142 S. Ct. at 2130.
United States v. Rahimi, 61 F.4th 443, 454 (5th Cir.), cert. granted, 143 S. Ct. 2688 (2023).
 Romer v. Evans, 517 U.S. 620 (1996).
 United States v. Virginia, 518 U.S. 515 (1996).
 303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023).
 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 143 S. Ct. 2141 (2023); Students for Fair Admissions, Inc. v. University of North Carolina, 143 S. Ct. 2141 (2023).
 Press Release, Colorado Attorney General, Attorney General Phil Weiser statement on 303 Creative civil rights case (Jun. 30, 2023), available at https://coag.gov/press-releases/attorney-general-phil-weiser-says-scotus-decision-in-303-creative-civil-rights-case-fails-to-uphold-the-principle-of-equal-justice-for-all/.
 Press Release, Colorado Attorney General, AG Weiser statement on SCOTUS decision in affirmative action for college admission (Jun. 29, 2023), available at https://coag.gov/press-releases/ag-weiser-statement-on-scotus-decision-in-affirmative-action-for-college-admission/.
 Griswold v. Connecticut, 381 U.S. 479 (1965).
 Dobbs, 142 S.Ct. at 2301 (Thomas, J., concurring).
 See, e.g., Weinberger v. Weisenfeld, 420 U.S. 636 (1975) (striking down provision in Social Security Act that provided survivor benefits to a widow, but not to a widower).