Wednesday, November 17, 2021

The Middle Ground in Dobbs

Gerard N. Magliocca

I don't know if any or enough of the Justices are interested in an abortion decision that does something other than reaffirm or overrule Casey. If there are, though, the obvious alternative is Justice O'Connor's dissent in City of Akron v. Akron Center for Reproductive Health, Inc. In that dissent, she argued that the undue burden standard should be used but that fetal viability should not be a bright-line rule. Adopting that test would permit the Court to uphold the Mississippi statute but retain a limited abortion right. Like everyone else, I'll be tuning in on December 1st to hear the arguments in Dobbs

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