Dobbs v Jackson Women’s Health Organization

In 2018, the state of Mississippi passed what was at the time the nation’s most stringent abortion law. H.B. 1510, The Gestational Age Act (GAA) prohibited the procedure after fifteen weeks of gestation, except for the life of the mother. None of the typical exceptions for rape or incest were included. The GAA was a key tenant of Governor Phil Bryant’s (Reference Bryant2014) promise ‘to end abortion in Mississippi’. While the timeframe was stringent by American standards, the Mississippi legislature framed the law as bringing abortion policy into congruence with global patterns. The beginning of the legislation notes that only six other countries ‘permit nontherapeutic or elective abortion-on-demand after the twentieth week of gestation’ (Alito Reference Alito2022). Regardless of global trends, the act appeared to clearly violate existing Constitutional standards that states cannot place an ‘undue burden’ in the face of women seeking an abortion.

Jackson Women’s Health Organization, the last remaining abortion provider in the state, immediately sued State Health Commissioner Mary Currier in the Southern District Court of Mississippi. Judge Carlton Reeves ruled that the GAA violated women’s due process rights. Global norms did not arise during proceedings and the opinion was solely based on domestic precedent. The State of Mississippi then appealed to Fifth Circuit Court. As with the district proceedings, deliberation was held along domestic lines of Constitutional argumentation. The Fifth Circuit ruled that the GAA posed an undue burden. Global normative standards were not incorporated into Judge Higginbotham’s opinion. The lack of global argumentation about a law that was framed around comparative norms suggests that judges are hesitant to incorporate global standards into their opinions unless such standards are brought to the court’s attention by an outside source.

In the summer of 2021, the Supreme Court announced that it would be hearing an appeal over the GAA’s constitutionality. Given that only the court can overturn constitutional precedent, justices decided to also discuss whether Roe in its entirety should be overturned. The stakes were high considering President Trump’s three staunchly conservative court appointments. In the run-up to oral argument, a flurry of 137 amicus briefs were submitted by interested third parties. Amici included a cross-ideological array of legal scholars, historians, medical professionals, activist organizations, politicians and celebrities. Of the 137 amicus briefs, ten were submitted by foreign or international organizations, dealing expressly with the issue of global abortion standards. Seven were in support of Jackson Women’s Health (respondent), two were in support of Mississippi (petitioner). One brief was neutral, attempting to provide an unbiased survey of European abortion law.

Respondent amici sought to either challenge the framing of the Mississippi legislature as bringing the world into congruence with global standards or provide data as to the adverse effects of countries choosing to limit abortion. A brief by European law professors showed that ‘39 of the 47 COE Member States make abortion broadly available for periods ranging from 10 weeks through viability. Abortion is permitted through at least 22 weeks of pregnancy in 37 States, and through 18–21 weeks in a further three’ (McAllister, Steel and Wilson Reference McAllister, Steel and Wilson2021). A group of international and comparative legal scholars also argued that Mississippi distorts the quality of regimes restricting abortion alongside a larger global trend towards enhancing access:

Global human rights groups, including Amnesty International, took the lead in demonstrating the health devastation likely to arise in Mississippi. Their brief noted that in countries like ‘Romania, South Africa, El Salvador, and Ecuador, there is a statistical relationship between the imposition of restrictive abortion legislation and increases in maternal mortality and morbidity … If an abortion ban like H.B. 1510 is upheld, more women in Mississippi are likely to die’ (Sorensen et al. Reference Sorensen, Green, Bochenek, Klasing, Radhakrishan and Shubin2021).

No global health organizations came to the defence of Mississippi. Two briefs were submitted by foreign and international law scholars to argue that the GAA was not outside the global norm of abortion restriction. Perhaps the most important brief from the entire Dobbs proceedings was the ‘Brief of 141 International Legal Scholars’. This brief was organized by Ligia Castaldi and Brian Scarnecchia of Ave Maria Law School, which has been a lynchpin for globally coordinating religious legal networks (Hollis-Brusky and Wilson Reference Hollis-Brusky and Wilson2021). Several foreign judges who had issued anti-abortion decisions signed on to the brief. Most notable among this cohort is Zbigniew Cieslak, a former Justice of Poland’s Constitutional Tribunal with a history of donating to anti-abortion causes (Cronin Reference Cronin2022). Deans from fourteen law schools associated with evangelical Protestantism or traditional Catholicism joined as well. The rest of the signatories were law professors from Africa, Asia, Europe, Latin America and Oceania. Each had contributed to a comparative law scholarship in a manner that was conducive to elevating foetal rights at the expense of female autonomy (Cornell Reference Cornell2022). Much of the brief’s substantive argument was derived from the scholarship of Paolo Carozza, a Notre Dame law professor who was also a member of President Trump’s Commission on Unalienable Rights. The brief also relied on the Geneva Consensus Declaration, which was one of the Trump administration’s international efforts in support of the natural family that argued abortion is not a human right.

The 141 International Scholars Brief deserves to be reprinted at length due to its impact on Dobbs’ outcome:

Amnesty International’s brief specifically responded to these claims, arguing that these scholars distorted reality because ‘a strong majority of women of reproductive age – approximately 60%– live in countries where abortion is available upon request or otherwise broadly available on a variety of social, economic, and health grounds. By contrast, just a handful of countries, representing 5% of women of reproductive age, ban abortion without exception’ (Sorensen et al. Reference Sorensen, Green, Bochenek, Klasing, Radhakrishan and Shubin2021).

During oral argument in December 2021, the issue of global norms was finally raised by Chief Justice John Roberts, who had been a long-standing opponent of judicial globalization, most prolifically speaking out against the practice during his confirmation hearings (Biskupic Reference Biskupic2019). Displaying discomfort but newfound openness with citing global norms, Roberts (Reference Roberts2021) said:

Reporting has since revealed that from the outset Roberts had tried to pursue this line of internationally minded argumentation as a compromise to uphold the Mississippi law while maintaining Roe (Biskupic Reference Biskupic2022). Such reporting is consistent with his long-standing efforts to maintain the political legitimacy of the court (Biskupic Reference Biskupic2019). These efforts at compromise required looking for analogous frameworks abroad, and they add weight to the legitimation hypothesis.

In May 2022, a draft opinion of Justice Alito’s majority opinion was leaked by Politico. Little changed between the draft and published opinion. Nothing changed regarding the citation of global norms. Alito’s opinion began by adopting Mississippi’s frame of bringing the United States into congruence with global standards on abortion: ‘To support this Act, the legislature made a series of factual findings. It began by noting that, at the time of enactment, only six countries besides the United States “permit[ted] nontherapeutic or elective abortion-on-demand after the twentieth week of gestation”’ (Alito Reference Alito2022: 6–7). Based on data provided in the 141 International Scholars Brief, Alito supplemented Mississippi by noting that the ‘other six countries were Canada, China, the Netherlands, North Korea, Singapore, and Vietnam … A more recent compilation from the Center for Reproductive Rights indicates that Iceland and Guinea-Bissau are now also similarly permissive’ (Alito Reference Alito2022: 7). After a discussion of federalism, the proper scope of judicial power and applicability of precedent, Alito officially overturned Roe and Casey. This monumental change in precedent was interwoven with another discussion of global norms:

Again, data from the 141 International Scholars Brief was used as the basis of Alito’s argumentation. The conclusion of the passage abolishing the viability framework is accompanied by the observation that ‘only the United States and the Netherlands use viability as a gestational limit on the availability of abortion on-request’ (Alito Reference Alito2022: 61).

The text of Alito’s opinion is potentially supportive of each hypothesis. In support of the attitudinal hypothesis, Alito and his four colleagues have previously been critical of some aspect of Roe. Global norms may have simply provided the justices with additional evidence in support of their long-standing policy preferences. In support of the legitimation hypothesis, Alito explicitly framed his opinion as bringing the United States into congruence with fellow democracies. Situating globalized decisions against or alongside certain regime types has been understood as a tool of political legitimation (Renberg and Tolley Reference Renberg and Tolley2021) In support of the illiberal network hypothesis, Alito’s citation of global norms was directly lifted from the 141 International Scholars Brief. Furthermore, this brief was put together by religiously inclined law school networks, being based upon the academic writings of a member of the Commission on Unalienable Rights and relying on the Geneva Consensus’s promotion of the natural family for political support.

Justice Kavanaugh issued a concurrence to suggest that the holding of Dobbs should be limited. Justice Thomas issued a concurrence to suggest the holding of Dobbs should be expanded. Both agreed that Roe needed to be overturned, and did not criticize Alito’s reliance on global standards. Chief Justice Roberts was a lonely voice, arguing that upholding the GAA did not require overturning Roe. His logic was identical to the position he had initially advanced at oral argument:

Two dynamics of this passage are favourable evidence to the political legitimation hypothesis. First, Roberts’ desire to maintain institutional integrity appears to have superseded his philosophical opposition to fostering a global constitutional dialogue. Second, the chief justice selectively chose to situate the United States’ current framework alongside the authoritarian nations of China and North Korea instead of fellow liberal democracies such as Canada and Iceland. Like Alito, this editorial choice allowed Roberts to paint his decision as bringing the United States into global congruence.

Breyer, Sotomayor and Kagan issued a joint dissent that was written by Kagan. The opinion filtered the global trends noted by the respondent briefs. Comparing Mississippi’s no-exception law to other abortion statutes was illegitimate:

Aside from the qualitative difference in Mississippi’s laws from the rest of the world, the dissent also argued that efforts to restrict abortion fly in the face of global trends in favour of liberalizing access. Bringing the United States into global congruence, according to the dissent, required maintaining Roe:

Overturning Roe was simply a raw exercise of power because ‘the majority can point to neither legal nor factual developments in support of its decision. Nothing that has happened in this country or the world in recent decades undermines the core insight of Roe and Casey’ (Kagan Reference Kagan2022: 190)

Liberal justices have long been sympathetic to globalized legal argumentation, so the dissents’ use of global norms is not a deviant case. However, since every action has an equal and opposite reaction, the dissent is still helpful for contextualizing the three hypotheses regarding the conservative justices’ use of global norms. First, in support of the attitudinal hypothesis, each argument cherry-picked certain data points to support diametrically opposed conclusions. Second, in support of the legitimation hypothesis, the dissent attacked Alito’s potential legitimation argument by painting the overturning of Roe as sliding away from liberal democratic norms. Third, the dissent relied on liberal legal networks that expressly attacked the framing of the 141 International Scholars Brief cited by Alito.

At this juncture, given that the justices’ papers will not be made public for decades, public remarks are the best indicator of motivations behind judicial decision-making. In the run-up to the decision, Justice Gorsuch made an unprecedented move of giving The Federalist Society keynote speech behind closed doors to avoid potential protest. During an interview at the Ronald Reagan Presidential Library a month before the opinion leak, Barrett pleaded for the American public to read the legal logic of the court’s upcoming controversial opinions rather than listen to political commentary on the matter. Roberts and Kavanaugh have been quiet on summer recess following Dobbs. Shortly after Dobbs, Justices Sotomayor and Thomas both gave public interviews saying that the justices were still congenial. Kagan publicly warned that ‘over time the Court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy’. Although she qualified the statement by saying, ‘I’m not talking about any particular decision’, it is difficult to divorce the remarks from the post-Dobbs environment (2022). In his first post-retirement speech, Breyer (Reference Breyer2022) noted that he is ‘still an optimist’ about the American system, even ‘with its drawbacks and its going-the-wrong way from time to time’.

The only justice to have been outspoken on the overturning of Roe has been Alito as keynote speaker at the 2022 Religious Liberty Summit. The conference is hosted by Notre Dame, and the 2022 edition was a follow-up to a previous iteration focused on the Commission of Unalienable Rights. Dobbs’ author gave an unprecedented speech tearing into his critics, both foreign and domestic. However, the speech opened with praise for American promotion of multilateral human rights accords:

The court would need to continue its vigilance in promotion of religious values because ‘religious persecution is alive and well in the world. And in many places, it is a violent life and death thing’ (Alito Reference Alito2022).

Any attempt to be globally conciliatory faded with an abrupt segue to the admission that ‘I am not a diplomat’. He revelled in the fact that:

Speaking a week after the ousting of British Prime Minister Boris Johnson follow a series of scandals, Alito joked that ‘one of these [critics] was former Prime Minister Boris Johnson, but he paid the price’ (Alito Reference Alito2022). Johnson was not the only global figure to be attacked:

Unlike his colleagues, who could with plausible deniability say they were not focused on Dobbs in their public commentary, the Prince Harry reference quashed any doubt that Alito was attacking critics of this decision.

He then attacked the secular foundation of the liberal world order, questioning political orders that pursue religious neutrality rather than actively promote religion:

Alito’s public remarks are strong evidence in favour of the illiberal network hypothesis. He does not question the validity of the liberal world order itself. However, his desire to embed a more sectarian society within the form of the liberal world order is a continuation of efforts spearheaded by the religious right in support of the natural family during the 1990s. This commentary marks the justices’ last public foray into abortion politics before the start of the 2022–23 term.

The proceedings of Dobbs contain evidence in support of each hypothesis explaining why conservative justices would depart from methodological orthodoxy by citing global norms. First, that both sides cited global norms to arrive at diametrically opposed conclusions is supportive of the attitudinal hypothesis. Second, Roberts’ use of global norms to forge judicial compromise during oral argument, as well as in his concurring opinion, suggests a legitimation dynamic. Alito situating his opinion alongside fellow liberal democracies is also in line with legitimation arguments from the judicial politics literature. Third, Alito’s reliance on the 141 International Scholars Brief suggests that illiberal networks were an essential component in introducing this dynamic for the justices’ consideration. Furthermore, this brief was shaped by pre-existing global religious networks that gained tremendous sway in the Trump administration. Alito’s public commentary further confirms conservatives’ increasing cosiness with these networks. Comparing the proceedings of Dobbs against Carson v Makin and Kennedy v Bremerton School District can help to clarify the extent to which these three hypotheses have explanatory power.

Carson v Makin

In 1980, the state of Maine made private religious schools ineligible to receive taxpayer-funded voucher assistance. Following the Supreme Court’s 2017 decision Trinity Lutheran Church of Columbia, Inc. v Comer, which forbade states from denying grant eligibility to private religious schools, religiously inclined parents sued Maine over the 1980 voucher exclusions. Parents argued that the sectarian exclusion violated the First Amendment’s Free Exercise Clause. Maine argued that sectarian funding would violate the First Amendment’s Establishment Clause. In the District Court of Maine, Judge Brock Hornby upheld the voucher exclusion. Hornby’s opinion was confined to whether Trinity overturned First Circuit precedent against sectarian funding. In June 2020, the Supreme Court’s five conservative justices ruled in Espinoza v Montana Department of Revenue that Trinity’s core holding applied to Montana’s voucher programme. Hornby’s ruling was appealed considering Espinoza and was upheld by the First Circuit in October 2020.

The Supreme Court granted certiorari for the 2021–22 term. Carson provided an opportunity for the religious right to advance sectarian globalism. Scalia’s Roper v Simmons (2005) dissent had identified the United States as a global outlier in limiting government aid to religious education:

From Scalia’s dissent sprang a rich comparative law scholarship by social conservatives and libertarians advancing aid to religious education as part of a broader school choice agenda (DeAngelis and McCluskey Reference DeAngelis and McCluskey2020). Justice Breyer (Reference Breyer2016) even acknowledged in his academic writings and public commentary that foreign legal developments pose challenges to his belief that publicly funding religious education would inevitably intertwine government and religion.

Despite the conservative intellectual groundwork on vouchers, global discourse was scant throughout the Carson proceedings. Of the 59 amicus briefs submitted before the court, only one contained an extensive discussion of global practices. Ashley Roberts Berner, an education professor at Johns Hopkin University and contributing expert at the conservative Manhattan Institute stated that

Berner’s amicus brief was cited in petitioners reply brief to argue that ‘if Maine were truly concerned with diversity, it would adopt a pluralistic approach to education like that which ‘prevailed in the beginning of our nation’s history and succeeds today in other modern democracies’’ (Shackleford and Whitehead Reference Shackleford and Whitehead2022). Michael Bindas, arguing on behalf of petitioners, did not purse any globalized line of argumentation during oral argument. Justice Breyer made one passive reference to France during a back-and-forth with Bindas, but aside from this small exchange the Justices did not press on the foreign law dynamics.

On 21 June, the court ruled 6–3 that Maine’s sectarian voucher exclusion was unconstitutional. All three opinions were bereft of references to global norms. Chief Justice Roberts issued an opinion for the six conservative justices. He ruled that the voucher’s exclusions were discriminatory against religion, violating the Free Exercise Clause. Since the voucher funds went to parents as an intermediary before being spent on religious education, reinstating sectarian funding would not violate the Establishment Clause. Breyer’s dissent argued the converse. Maine had anti-establishment interests in preventing taxpayer money to support private religious education. Sotomayor issued a standalone dissent to emphasize that this decision was part of a concentrated campaign ‘to dismantle the wall of separation between church and state that the Framers fought to build’.

It cannot be argued that the conservatives avoiding foreign law was out of principled opposition to the practice, since they would do so a week later in Dobbs. The lack of citations to foreign law in Carson weakens the attitudinal and legitimation hypotheses. Mixed evidence exists regarding the illiberal network hypothesis. First, casting doubt on the attitudinal hypothesis, Roberts’ opinion did not cite foreign subsidy to religious education despite an extensive corpus of academic literature that could have been used to justify pre-existing policy preferences. Second, to the extent that the legitimate perception of the court was challenged in this ruling, Sotomayor’s solo dissent tried to paint the court as giving in to a concerted campaign against legal secularization. The majority could have rebuffed Sotomayor by framing their opinion as simply bringing the United States into the norm of fellow liberal democracies, but chose not to do so. Third, the illiberal network hypothesis may best explain the discrepancy between Dobbs and Carson in conservative citation of global norms, but challenges remain. No global religious networks submitted an amicus brief focusing on global norms regarding religious aid to education. Ashley Binder’s brief did provide foreign law data on religious education, but her work is representative of the conservative legal movement’s libertarian wing that shies away from the religious right’s promotion of the natural family. It may not be appropriate to label an individual’s libertarian scholarship as an illiberal network. Considering Dobbs and Carson in relation to Kennedy can help to further refine the scope of these hypotheses.

Kennedy v Bremerton School District

Joseph Kennedy was a high school football coach who prayed on the 50-yard line following each game. He was fired by the Bremerton School District out of concern that such prayers violated the Establishment Clause. Kennedy sued his employer in the Western District Court of Washington, arguing that his rights of free speech and free exercise were violated. Judge Leighton ruled that Kennedy had violated the Supreme Court’s 1973 precedent of Lemon v Kurtzman, which created a three-pronged test to determine whether government actions are an unconstitutional endorsement of religion. Kennedy lost on appeal to the Ninth Circuit. Then appealing to the Supreme Court in 2019, Kennedy was denied certiorari. Yet Alito, joined by Thomas, Gorsuch and Kavanaugh, expressed concern that language of the Ninth Circuit ‘can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith.’ After further fact-finding, the Western District Court again ruled in favour of Bremerton. A divided Ninth Circuit panel affirmed this ruling. Kennedy’s petition for an en banc hearing was denied, setting the stage for a showdown at the Supreme Court. These lower court proceedings did not include any comparative analysis of foreign laws regarding religious establishment in education.

The Supreme Court granted certiorari for the 2021–22 term to settle this dispute between speech and establishment concerns. Petitioner and respondent’s brief both focused on whether Bremerton School District violated Kennedy’s speech rights by trying to prevent a violation of the Lemon endorsement test. 66 amicus briefs were filed, mostly providing additional evidence for each side’s interpretation of Lemon. A few amici went further than petitioner, questioning the merits of the endorsement test. The religious right has long been opposed to Lemon because its doctrine legally interfered with state promotion of the natural family (Benshoof Reference Benshoof1987). One brief was submitted by a cadre of globally oriented religious organizations that sought to promote the natural family such as the Billy Graham Evangelical Association. This brief was confined to Constitutional precedent, arguing that the endorsement test was incompatible with religious liberty (Fitschen and Davids Reference Fitschen and Davids2021). Trump’s Education Secretary Betsy DeVos also submitted a brief, arguing that some form of a ‘history and tradition’ test could be used by the court to create outcomes more conducive to claims of religious speech. Since the 1980s, the DeVos family has been extensively involved in funding political and legal networks in support of the natural family (Stanton Reference Stanton2017). Global discourse was then absent from oral argument.

A week after Dobbs, the court issued its Kennedy opinion. Justice Gorsuch, while not directly citing their efforts, fulfilled the stated goal of evangelical amici by directing lower courts to abandon the endorsement test. Instead of endorsement concerns, Gorsuch adopted the preferred test of Betsy DeVos’s organization by insisting that lower courts should consult ‘historical practices and understandings’ when settling disputes between establishment and speech or religious exercise concerns. Kennedy’s prayers were protected under this new test because, ‘The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.’ Alito issued a concurrence, arguing that the opinion did not go far enough in delineating the speech rights of public employees versus private citizens. Thomas concurred, echoing one of his out-of-the-mainstream views that the Establishment Clause should not be applied against state governments. As she had done in Carson, Sotomayor issued a dissent painting her conservative colleagues as giving in to a concentrated campaign to erode ‘our Nation’s longstanding commitment to the separation of church and state’.

Like Carson, Kennedy weakens the attitudinal and legitimation hypotheses. First, the court’s conservatives were again not willing to cite the literature on foreign intersections of religion and education, despite such literature suiting their agenda. Second, the act of overturning Lemon’s operative precedent did not make the conservatives feel as though global contextualization was necessary. Nor did Gorsuch seek to globally contextualize his opinion in response to Sotomayor’s criticism that the majority was subordinating Constitutional doctrine to extra-judicial religious networks. Considering Kennedy, the illiberal network hypothesis most plausibly explains Dobbs’ conservative global forays. The overturning of the Lemon endorsement test was a sought-after goal of globally oriented evangelical organizations and Trump administration officials acting as amici, demonstrating their staying power in a transformed Supreme Court. However, Gorsuch did not cite these amici so his opinion may have been incidentally congruent with these organizations’ preferences.