August 9, 2022

Volume XII, Number 221

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August 08, 2022

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“NO HALF MEASURES”: Did a Needless Gamble in the Briefing Help Doom Abortion Rights in America?

As readers of this blog know, there is nothing I find more fascinating that exploring the impact of decisions made by lawyers on the ultimate outcome of cases.

As I re-read Dobbs today I was struck by Alito twice calling out the Respondent’s–i.e. those who say abortion rights about be protected–for telling the Supreme Court that their hands were tied. They had to either affirm or reject Roe and Casey. “No half-measures” the brief, apparently, stated. See Dobbs at 5 (“They contend that “no
half-measures” are available and that we must either reaffirm or overrule Roe and Casey. Brief for Respondents 50); and again at (“They tell us that “no half-measures” are available: We must either reaffirm or overrule Roe and Casey. Brief for Respondents 50.)

Well Respondents certainly got what they asked for.

I assume the strategic gamble was made that it would be tougher for the Court to rule against their client’s interest if the fate of everyone’s abortion hung in the balance. So–the calculus presumably went– forcing the Court into the corner of having to destroy Roe completely to rule against their client was the best way to assure they would win.

Had Respondents taken a different tack–been more creative, imaginative and (perhaps) respectful of everybody else’s rights–there might have been an alternate path afforded to the Supremes. Maybe some more nuanced ruling. A determination that the Mississippi bill wasn’t really an undue burden.

Indeed Chief Justice Roberts advocated for precisely such a half measure: Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all. 

Perhaps this could have been, had there not been such hubris on display in the briefing.

Or perhaps not. Perhaps the outcome here was baked. Perhaps this court was just looking for a vehicle to overturn Roe and the first chance that came along it was going to do it.

Justice Alito referencing the comment twice does make me wonder though. There was no reason to reference it even once. It certainly seemed to have rubbed him the wrong way. As if he-and the court–felt personally challenged. Like this was some giant game of chicken.

To me there is no question Justice Alito was trying to communicate a message to the Respondents’ lawyer: Nobody puts baby in the corner.

Can’t say it was outcome determinative. But it may have tipped the scales.

Pro tip: If you’re ever arguing to the U.S. Supreme Court don’t overplay your hand. Because the whole nation may suffer if you do.

© 2022 Troutman FirmNational Law Review, Volume XII, Number 175
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About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA
Founder

Eric J Troutman is known as one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...

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