On December 1, 2021, the U.S. Supreme Court will hear Dobbs v. Jackson Women’s Health Organization, one of the most anticipated cases on the Court’s docket in recent years, on the question of whether all pre-viability prohibitions on elective abortions are unconstitutional.

In defending its ban on abortions after 15-weeks gestation, Mississippi asks the Court to overrule Planned Parenthood v. Casey and Roe v. Wade, arguing that the cases were egregiously wrong because a right to abortion has no basis in the text, structure or history of the Constitution. Mississippi further argues that the various frameworks have proved hopelessly unworkable; that the cases have inflicted severe damage on democratic self-government, on the country, and on the understanding that the Supreme Court is a neutral arbiter of the law; that they have been overtaken by a better legal and factual understanding; that reliance interests do not support upholding Roe and that accordingly stare decisis principles counsel in favor of overruling them. Respondents argue that the viability standard is the central line that underpins these rulings, and that the Court’s decision to retain it in Casey, in the face of repeated requests to abandon it both in the years leading up to Casey and in Casey itself, makes the bar for overruling it particularly high. They further note stare decisis’s centrality to the rule of law and to public confidence in the courts. They add that the viability standard is well-grounded in the Constitution and that a right to abortion remains critical to women’s equal participation in the workforce.

Our panel explored these and other arguments and considered whether overruling these decisions, maintaining the viability line in some form, or some other approach best serves the rule of law.


— Prof. Daniel Farber, Sho Sato Professor of Law, University of California, Berkeley
— Prof. Sherif Girgis, Associate Professor of Law, University of Notre Dame Law School
— Prof. Julia Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
— Prof. Richard Re, Joel B. Piassick Research Professor of Law, University of Virginia School of Law
— Prof. Mary Ziegler, Stearns Weaver Miller Professor, Florida State University College of Law
— Moderator: Hon. Thomas B. Griffith, formerly U.S. Court of Appeals, D.C. Circuit
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

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