Will Baude Poses Legal Questions After Dobbs

Legal Questions about Abortion after Dobbs

Assume for now that Dobbs takes off the table the question of whether the 14th Amendment protects a right to abortion. What are the major legal questions about abortion likely to arise in the federal courts going forward? I've been trying to come up with a list of the major categories.

1.  Other federal constitutional claims to abortion. Perhaps somebody will press the 13th Amendment argument (see Koppelman; but see Lash) though it is hard to imagine it going any where. There are also free exercise arguments, which I suspect will also fail, though not quite for the same reasons that Josh Blackman has given.

2. The life/health of the mother. Does the 14th Amendment provide any limit on abortion laws that imperil the life or health of the pregnant woman? Dobbs adopts a rational basis standard, and even Justice Rehnquist's dissent in Roe, for instance, conceded that the 14th Amendment "does place a limit, albeit a broad one" on abortion laws, specifically opining that "If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective."Additionally, some commentators such as Shirif Girgis have argued that history and tradition might require some kind of life-of-the mother exception. But I don't think we can regard either argument as certain, nor is it certain how they would extend to severe health risks or other scenarios.

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