In Dobbs v. Jackson Women’s Health Organization, the Supreme Court distinguished between different kinds of reliance interests — some that would support preserving a judicial precedent, and others that would not. According to the Court in Dobbs, “very concrete” reliance interests, such as those involving property or contract rights, are readily accepted as a basis to keep the law as it is. By contrast, a “more intangible form of reliance” — consisting of expectations about women’s status in society and the structure of personal relationships — does not fall within the judicial power to assess; therefore, the Supreme Court did not credit this form of reliance. Professor Nina Varsava’s Article, Precedent, Reliance, and Dobbs, compellingly argues that the Dobbs Court improperly gave short shrift to the reliance interests attaching to preservation of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. Varsava explains that there were significant “concrete” reliance interests supporting the maintenance of Roe and Casey, and that the less “tangible” forms of reliance rejected in Dobbs were better grounded in the case law than Dobbs suggested.
My Response aims to contextualize the Dobbs Court’s discussion of “concrete” versus “intangible” reliance interests by drawing on a broader legal background. The categories of “concrete,” “tangible,” and “intangible” appear in other areas of American law, including constitutional standing doctrine, tort law, and federal fraud statutes. Examining the role of these categories in other doctrines highlights features of concreteness, tangibility, and intangibility that lay beneath the surface in the Dobbs opinion.
The way is then paved to examine the normative judgments on which the Supreme Court’s decision to reject “intangible” interests rested. One candidate is a view about the institution of the judiciary: federal judges may not be well positioned to ascertain the degree of women’s reliance on the abortion right and its relationship to sex equality and constitutional liberty. Though this institutional concern should be considered seriously, it does not justify the Court’s decision to discount “intangible” interests altogether. It is difficult to deny that the right to choose an abortion has had some meaningful impact on the lives of a substantial number of American women. The question implicitly raised in Dobbs is whether that impact ought to have been relied on. The answer, for the Dobbs majority, appears to have been “no.” In fact, the Dobbs Court’s treatment of “intangible” and “concrete” interests is most intelligible as a reflection of contested normative perspectives on abortion and gender dynamics in modern American society.