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O’Malley, William

English

Oligarchs, Superyachts, and Due Process: How Congress Walked a Legal Tightrope on Russian Asset Forfeiture

University of Maryland Law Journal of Race, Religion, Gender and 
Class 
Volume 23 Issue 2 Article 11 
Intro Pages and TOC 
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Intro Pages and TOC, 23 U. Md. L.J. Race Relig. Gender & Class (2024). 
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UNIVERSITY OF MARYLAND 
LAW JOURNAL OF 
RACE, RELIGION, GENDER & CLASS 
 
VOLUME 23    FALL 2023    NUMBER 2 
 
ARTICLES 
 
Challenging Overincarceration:  
The Roles of Law School Clinics Working in Partnership – A Symposium 
 Michael Millemann              135 
 
 
The Slow Drip of Decarceration:  
Reversing the Flood of Mass Incarceration and Its Racist Impact 
                                           Olinda Moyd                          211                
              
 
COMMENTS 
 
Egbert v. Boule:  
Sacrificing Custom and Border Patrol Accountability in the Name of National Security 
 Rafael Moreno  280 
 
 
SCOTUS Sours on Lemon: 
Kennedy and Prayer in Public School 
                                                           Caitlyn Sarudy  303 
           
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 [Page intentionally left blank] 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Intro Pages and TOC

Maryland Law Review 
Volume 83 Issue 1 Article 1 
Table of Contents 
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Recommended Citation 
Table of Contents, 83 Md. L. Rev. () 
Available at: https://digitalcommons.law.umaryland.edu/mlr/vol83/iss1/1 
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MARYLAND LAW REVIEW 
 
VOLUME 83 2023 NUMBER 1 
© Copyright Maryland Law Review 2023 
 
TABLE OF CONTENTS 
 
ESSAYS 
 
Reflections on Stare Decisis 
Judge Joseph A. Greenaway, Jr. 1 
        
ARTICLES 
 
The Use and Limits of Longstanding Practice in Constitutional Law 
Spencer G. Livingstone 10 
 
Death Drop: The Roberts Court, Legitimacy, and the Future of Democracy in the United States 
Julie Novkov 77 
 
The Unfinished Masterpiece: Compulsion and the Evolving Jurisprudence Over Free Speech 
Jonathan Turley 145 
 
SYMPOSIUM 
 
Foreword: The Lincoln-Douglas(s) Debates and the Problem of Constitutional Evil 
Mark A. Graber 190 
 
Who Are the True Heirs of Lincoln and Douglas? 
Rogers M. Smith 204 
 
“I Shall Not Forget or Entirely Forsake Politics on the Bench”: Abraham Lincoln, Dred Scott, and 
the Political Culture of the Judiciary in the 1850s 
Rachel A. Shelden 217 
 
Original Intent, Racial Equality, and the Conundrums of “Colorblindness” 
Jeffrey D. Hoagland & Vinay Harpalani 231 
 
Douglass, Lincoln, and Douglas Before Dred Scott: A Few Thoughts on Freedom, Equality, and 
Affirmative Action 
Henry L. Chambers, Jr. 245 
 
Frederick Douglass as Constitutionalist 
Jack M. Balkin & Sanford Levinson 260 
 
Lincoln, Douglass, Fugitive Slave Law, and Constitutional Evil 
Robinson Woodward-Burns 281 
 
What to the Nation Is the American Soldier? Shifting Conceptions of Service, Rights, and 
Belonging in the Civil War 
Julie Novkov 294 
 
“Our Constitution . . . Should Be Read by Intelligent and Patriotic Men”: A Statistical Analysis of 
Constitutional Rhetoric 
William D. Blake 314 
 
A Meditation on the Thirteenth Amendment and Constitutional Redemption 
Darrell A.H. Miller 331 
 


Smith, Rogers M.

Who Are the True Heirs of Lincoln and Douglas?

Hoagland, Jeffrey D.

Harpalani, Vinay

Original Intent, Racial Equality, and the Conundrums of “Colorblindness”

Denley, Rev. TJ

Originalism v. Dynamic Constitutionalism: Implications of Religious Beliefs on Constitutional Interpretation

Stearns, Max

University of Maryland Francis King Carey School of Law 
DigitalCommons@UM Carey Law 
Maryland Law Review Online 
2023 
Precedent, Reliance, and Morality at the End of Roe v. Wade 
Max Stearns 
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 Part of the Law and Society Commons 
Recommended Citation 
Precedent, Reliance, and Morality at the End of Roe v. Wade, 82 Md. L. Rev. Online 108 (2023). 
This Articles/Comments/Notes to Essay from Volume 82 is brought to you for free and open access by 
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smccarty@law.umaryland.edu. 
 
 
108 
ESSAY 
PRECEDENT, RELIANCE, AND MORALITY AT THE END OF 
ROE V. WADE 
MAX STEARNS* 
 
In an opinion that shook the world, Dobbs v. Jackson Women’s Health 
Organization,1 ended the right to terminate an unwanted pregnancy 
announced in the 1973 landmark case, Roe v. Wade.2 For the majority, Justice 
Alito declared Roe fundamentally flawed from its inception, and, joined by 
four others, he relegated abortion regulation entirely to the states.3 Chief 
Justice Roberts, concurring in the judgment, would have retained Roe yet 
ditched its viability line, upholding Mississippi’s 15-week ban, claiming this 
would allow women to realize they are pregnant and to make a timely 
choice.4  
However inadequate and factually dubious the premise—not all 
women’s cycles operate with clock-like precision and complicating risks are 
often discovered later—Roberts’s somewhat less devastating opinion might 
have controlled had Justice Ruth Bader Ginsburg stepped down well before 
the contrived, Scalia-motivated, then abandoned, Merrick Garland rule.  
In a simple concurrence, Justice Kavanaugh, who joined the Dobbs 
majority, declared his respect for the many Justices preceding him who 
reached a contrary resolution on the ultimate question whether to retain Roe.5 
By contrast, Justice Thomas barred no holds. Thomas declared an intent to 
 
© 2023 Max Stearns. 
* Venable, Baetjer & Howard Professor of Law, University of Maryland Francis King Carey 
School of Law. Special thanks to Richard Boldt, Mark Graber, and Nina Varsava for insightful 
feedback on earlier drafts; to Jennifer Chapman for excellent commentary and library support, and 
to Ghina Ammar and Elizabeth Stamas for outstanding research assistance. Thanks to Luca Artista 
for helpful editing on behalf of the Maryland Law Review. I also benefited from early conversations 
about Dobbs with David S. Cohen. The original blog post that culminated in this Essay is also 
available at Max Stearns, Precedent, Reliance, and Morality at the End of Roe v. Wade, BLINDSPOT 
(July 19, 2022), https://www.blindspotblog.us/post/precedent-reliance-and-morality-at-the-end-of-
roe-v-wade. 
 1. 142 S. Ct. 2228 (2022). 
 2. 410 U.S. 113 (1973). 
 3. Dobbs, 142 S. Ct. at 2268, 2277.  
 4. Id. at 2310–17 (Roberts, C.J., concurring). 
 5. Id. at 2304–10 (Kavanaugh, J., concurring). 
 
2023] PRECEDENT, RELIANCE, AND MORALITY 109 
revisit a long line of cases that failed his stringent originalist conception,6 
while notably omitting Loving v. Virginia,7 the case that struck down 
Virginia’s anti-miscegenation statute. 
This Essay makes three points: (1) the majority’s misleading 
characterization of the reliance argument expressed in the controlling 
plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. 
Casey,8 is not the most damaging aspect of Dobbs; (2) the majority’s claim 
that the right announced in Roe has no connection to the historical 
Constitution is mistaken; and (3) ultimately, Dobbs is a deeply troubling 
exercise in hubris. 
Dobbs marks a seismic shift in a half-century’s growing recognition of 
the injustices of subordinating women and fighting for their inclusion on 
equal terms in the workplace and public life. Before 1973, a woman as 
primary or coequal breadwinner was uncommon; today it’s unremarkable.  
This helps explain why Justice Alito’s misleading characterization of 
the Casey plurality’s central reliance argument is stunning.  
Justice Alito for the majority in Dobbs states:  
In Casey, the controlling opinion conceded that traditional reliance 
interests were not implicated because getting an abortion is 
generally “unplanned activity,” and “reproductive planning could 
take virtually immediate account of any sudden restoration of state 
authority to ban abortions.”9 
Here is what the Casey plurality—the controlling opinion—actually 
said:  
This argument [described above] would be premised on the 
hypothesis that reproductive planning could take virtually 
immediate account of any sudden restoration of state authority to 
ban abortions.  
To eliminate the issue of reliance that easily, however, one 
would need to limit cognizable reliance to specific instances of 
sexual activity. But to do this would be simply to refuse to face the 
fact that for two decades of economic and social developments, 
people have organized intimate relationships and made choices that 
define their views of themselves and their places in society, in 
reliance on the availability of abortion in the event that 
contraception should fail.10 
 
 6. Dobbs, 142 S. Ct. at 2300–04 (Thomas, J., concurring). 
 7. 388 U.S. 1 (1967). 
 8. 505 U.S. 833 (1992). 
 9. Dobbs, 142 S. Ct. at 2238–39 (majority opinion) (quoting Casey, 505 U.S. at 856 (plurality 
opinion)).  
 10. Casey, 505 U.S. at 856. 
 
110 MARYLAND LAW REVIEW ONLINE [VOL. 82:108 
This isn’t a quibble. Alito misconstrues the controlling Casey opinion’s 
central argument.  
Even so, this framing, emphasizing the role of women who, especially 
in the past half century, have assumed a level of stature previously available 
only to men, while important, misses the strongest moral disapprobation of 
Dobbs. The greater problem involves the rights of vastly larger numbers of 
women, often girls, and other persons with the capacity to become pregnant,11 
who lack the educational, financial, familial, and other resources to extricate 
themselves from the onslaught of near immediate, and ever more draconian, 
abortion restrictions.12 The very women the reliance argument protects are 
those who can most easily—by careful research and travel plans—avoid the 
dire choices Dobbs is already creating.13 
Moral culpability isn’t synonymous with but-for causation, but on any 
reasonable understanding, it necessarily includes reckless indifference to 
conditions forcing the difficult choices the law elects to condemn. I respect 
persons holding differing views on the ultimate question of abortion’s 
morality. Abortion is unique. It involves a potential human life, on one side, 
and the health, safety, emotional, financial, and familial needs of the 
individual who bears it, on the other. The moral question implicated in the 
long line of cases reassessing Roe, now culminating in Dobbs, involves more 
than the ultimate decision to terminate an unwanted pregnancy. It necessarily 
implicates the complex set of conditions that heighten the risk that 
individuals capable of doing so will experience unanticipated pregnancies yet 
lack the resources, financial, educational, or otherwise, to provide themselves 
and the developing fetus a promising life, or the wherewithal to carry full-
term pregnancy with the eventual plan of adoption.14  
 
 11. Kim Wong-Shing, Abortion Access Doesn’t Only Affect Women, CNET (July 2, 2022), 
https://www.cnet.com/health/parenting/abortion-access-doesnt-only-affect-women/. 
 12. See, e.g., ARK. CODE. ANN. §§ 5-61-301 to -304 (West 2023) (Arkansas Human Life 
Protection Act passed in 2019 as a “trigger law” and went into effect after the Dobbs decision); MO. 
ANN. STAT. § 188.017 (West 2023) (Missouri Right to Life of the Unborn Child Act passed in 2019 
and went into effect after the Dobbs decision); S.D. CODIFIED LAWS § 22-17-5.1 (2023) (South 
Dakota Act categorizing unauthorized abortion as felony effective after the Dobbs decision); TENN. 
CODE ANN. § 39-15-201 (West 2023) (Tennessee “trigger ban” that went into effect after the Dobbs 
decision). 
 13. See, e.g., Edward Helmore, 10-year-old Rape Victim Forced to Travel from Ohio to Indiana 
for Abortion, GUARDIAN (July 3, 2022, 1:55 PM), https://www.theguardian.com/us-
news/2022/jul/03/ohio-indiana-abortion-rape-victim. 
 14. Elizabeth A. Mosley et al., Racial and Ethnic Abortion Disparities Following Georgia’s 
22-week Gestational Age Limit, 32 WOMEN’S HEALTH ISSUES 9 (2022); GUTTMACHER INST., FACT 
SHEET: UNINTENDED PREGNANCY IN THE UNITED STATES (Jan. 2019), 
https://www.guttmacher.org/sites/default/files/factsheet/fb-unintended-pregnancy-us_0_4.pdf; 
Christine Dehlendorf, Lisa H. Harris & Tracy A. Weitz, Disparities in Abortion Rates: A Public 
Health Approach, 103 AM. J. PUB. HEALTH 1772 (2013). 
 
2023] PRECEDENT, RELIANCE, AND MORALITY 111 
Laying full responsibility typically on the woman or girl by allowing 
states to deny any lawful choice, sometimes even in cases involving rape or 
incest, or a health threat to the mother, is its own deeply problematic moral 
choice. The moral decision to condone such restrictive abortion laws 
disregards myriad policy decisions contributing to limited opportunities for 
quality education; declining social safety nets; unaffordable quality housing; 
and a lack of adequate healthcare, daycare, food safety, and more. These 
policy choices correlate to greater incidence of unwanted pregnancies and to 
adverse consequences when they occur.  
The challenges fall hardest on communities of color, where unwanted 
pregnancies often pose difficulties in placing infants, who risk finding 
themselves in the problematic cycle of foster care.15 And, tragically but 
inevitably, those lacking the means to obtain safe and lawful abortions will 
seek other, dangerous, alternatives. The Dobbs majority’s exceedingly 
narrow conception of responsibility—all rested upon the person seeking to 
end a pregnancy as if none of these other factors counsel judicial constraint—
avoids any moral culpability for the role our legal culture has played in 
encouraging such tragic circumstances to recur.  
Yes, Alito mischaracterized. And yes, the changing societal role of 
women matters. Women’s reproductive choice is essential to gains made in 
the past half century, and longer. But the deeper moral culpability—creating 
or condoning conditions encouraging unwanted pregnancies and ending 
societal responsibility at the moment of a compelled birth—remains.  
Justice Alito also claims Roe has no foundation in the Constitution. He’s 
wrong there too.  
Following Robert Bork’s failed nomination for the Supreme Court, he 
wrote The Tempting of America. In it, Bork explained that his originalist 
methodology allowed Brown v. Board of Education,16 but not Griswold v. 
Connecticut,17 creating a right of married couples to use contraceptives;18 
Eisenstadt v. Baird,19 extending that right to unmarried couples;20 or Roe v. 
Wade.21 
Here’s Bork’s argument: When ratified, and even at the time of Plessy 
v. Ferguson,22 the Fourteenth Amendment rested on two premises, a major 
 
 15. Ronald Hall, The US Adoption System Discriminates Against Darker-Skinned Children, 
CONVERSATION (Feb. 21, 2019, 6:43 AM), https://theconversation.com/the-us-adoption-system-
discriminates-against-darker-skinned-children-110976.  
 16. 347 U.S. 483 (1954).  
 17. 381 U.S. 479 (1965). 
 18. Id. at 485. 
 19. 405 U.S. 438 (1972). 
 20. Id. at 454. 
 21. 410 U.S. 113 (1973). 
 22. 163 U.S. 537 (1896). 
 
112 MARYLAND LAW REVIEW ONLINE [VOL. 82:108 
premise—equal justice under the law—and a minor premise—with 
rudimentary public education, segregated schools didn’t undermine equal 
justice. But by 1954, these premises collided, and the minor premise had to 
yield.  
There’s much to criticize there, not least of which includes how African 
American men denied the right to vote could have had equal justice. And, of 
course, even that failed to include women who would have to wait over 50 
more years to gain the right to vote, and much longer for women of color.23 
Still, consider an analogy that ironically has Bork—the leading 
originalist until Antonin Scalia assumed the mantle—identifying the moral 
problem with the Dobbs view that cost him a seat on the Supreme Court. 
(Originalism is now more generally associated with original public meaning, 
yet Bork’s defense of Brown has the same strengths and flaws under that 
originalist conception.) At the time of ratification, an even more intuitive 
major Fourteenth Amendment premise was ensuring that primary 
breadwinners, regardless of such arbitrary considerations as race, could not 
be denied the opportunity to support their families by being treated as second 
class citizens. A minor premise was that limiting women to subordinate roles 
didn’t prevent primary breadwinners from meeting that obligation. At the 
time, at least in white households, it was exceedingly rare for women to be 
breadwinners. By 1973 this had begun to change; today it has done so 
dramatically, with trend lines continuing to favor women in higher education 
and the workplace.24 And so, the premises, once more, have collided, and the 
minor premise must yield. Bork’s originalism creates a constitutional 
foundation for the very right originalists insistently deny.  
The moral question whether or when to end a pregnancy is separate from 
the constitutional question of who is empowered to decide. However one 
chooses to resolve that query, we must acknowledge the moral abdication of 
disclaiming societal responsibility for policies that heighten the incidence of 
unwanted pregnancies and the challenging conditions facing those who seek 
to end them.  
 
 23. See generally ELAINE WEISS, THE WOMAN’S HOUR: THE FIGHT TO WIN THE VOTE (2018) 
(describing the efforts to pass the Nineteenth Amendment); PAULA A. MONOPOLI, 
CONSTITUTIONAL ORPHAN: GENDER EQUALITY AND THE NINETEENTH AMENDMENT (2020) 
(exploring the impacts of the Nineteenth Amendment and the significance of race in the post-
ratification period).  
 24. Jennifer L. Glass, R. Kelly Raley & Joanna R. Pepin, Mothers are the Primary Earners in 
Growing Numbers of Families with Children, COUNCIL ON CONTEMP. FAMS. (Nov. 2, 2021), 
https://sites.utexas.edu/contemporaryfamilies/2021/11/02/breadwinning-mothers-brief-report/ 
(describing research published in the 2021 article Jennifer L. Glass, R. Kelly Raley & Joanna R. 
Pepin, Children’s Financial Dependence on Mothers: Propensity and Duration, 7 SOCIUS, Nov. 15, 
2021, at 1–11, https://doi.org/10.1177/23780231211055246).  
 
2023] PRECEDENT, RELIANCE, AND MORALITY 113 
Alito is mistaken both on Casey’s reliance analysis and on whether 
abortion rights are meaningfully connected with the Constitution. What’s 
most troubling is the hubris of any single Justice in a 5-4 decision claiming 
such certainty against the collective judgment of so many—including a 
majority of Republican-appointed Justices—who struggled with the same 
question yet came out otherwise (see immediately below).  
 
*** 
 
Justices, by party of appointing President, who supported Roe originally 
or who would retain it (Roman typeface), and Justices, by party of appointing 
President, who opposed Roe originally or would overturn it (italics). Counts 
assembled at the end. 
 
Chief Justices: 
Rehnquist (R) 
Roberts (R) 
 
Associate Justices: 
Douglas (D) 
Brennan (R)  
Stewart (R)  
White (D) 
Marshall (D) 
Blackmun (R) 
Powell (R) 
Stevens (R) 
O’Connor (R) 
Scalia (R) 
Kennedy (R) 
Souter (R) 
Thomas (R) 
Ginsburg (D) 
Breyer (D) 
Alito (R) 
Sotomayor (D) 
Kagan (D) 
Gorsuch (R) 
Kavanaugh (R) 
Barrett (R) 
 
114 MARYLAND LAW REVIEW ONLINE [VOL. 82:108 
Jackson (D)25 
 
The Counts: 
• Democratic appointed Justices who favored or would retain Roe: 6 
• Democratic appointed Justices who opposed or would overturn Roe: 1 
• Republican appointed Justices who favored or would retain Roe: 9 
• Republican appointed Justices who opposed or would overturn Roe: 7  
 
Final note: Over a period of 50 years, of the 7 Republican-appointed Justices 
who opposed or would overturn Roe, out of a larger group of 16 Republican-
appointed Justices, 5 formed the Dobbs majority. 
 
 25. Not included in the following count because she took her seat as Associate Justice post-
Dobbs. 


Precedent, Reliance, and Morality at the End of \u3cem\u3eRoe v. Wade\u3c/em\u3e

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