On April 27, 2022, the Wall Street Journal editorial page worried that Chief Justice Roberts was "trying to turn another Justice." At the time, I speculated on the blog that the WSJ received a leak from the Court, and was trying to affect internal deliberations. But internally, I had an inkling what could be going on. No, I did not have a leak. Rather, I know Chief Justice Roberts--and his attempts to save things--extremely well.
Back in October 2021, I wrote a draft blog post about what the Chief's preferred middle ground in Dobbs could look like. I understood that this approach would be pure sophistry, but I take that premise as a given for the Chief. Here is an excerpt from the draft post, which should look familiar. I only made slight alterations for readability:
With rational basis review the relevant line would not be based on the viability of the fetus or some arbitrary trimester framework. Rather the line will be drawn based on whether the woman knows or reasonably should have known she was pregnant. At that point, she would have had a meaningful opportunity to terminate the pregnancy. But that notice doesn't need to be the full nine months of the pregnancy. According to a 2017 study, "gestational age at time of pregnancy awareness was 5.5 weeks (standard error = 0.04) and the prevalence of late pregnancy awareness was 23% (standard error = 1 %)." And the "average gestational age at time of pregnancy awareness has not changed over the last two decades." Given these numbers, under S.B. 8 women may have an exceedingly short period of time to actually obtain the abortion. Moreover, cardiac activity may be detected before six-week mark. Or a woman may learn about her pregnancy after the six-week mark. The Texas six-week limit would not be sufficient because many women do not even know they're pregnant at that point. But the 15-week Mississippi ban would afford women the opportunity to learn of their pregnancy.
