Abortion Rights on the Bar Exam

A student recently asked how the U.S. Supreme Court’s leaked draft court opinion that would toss out longstanding abortion rights would impact how examinees would need to answer abortion questions on the bar exam.

First, it’s important to note that the court’s decision isn’t final, so says Supreme Court Chief Justice John Roberts. The final decision is expected by late June or early July 2022.

Second, the national Conference of Bar Examiners, the authors of the MBE (and all components of the Uniform Bar Exam), generally don’t purposely test on issues currently before the Supreme Court.

So let’s look at the timeline of Dobbs v. Jackson Women’s Health Organization:

December 13, 2019: The United States Court of Appeals for the 5th Circuit affirmed the U.S. District Court for the Southern District of Mississippi's ruling.

June 15, 2020: Mississippi Department of Health state health officer Thomas Dobbs, in his official capacity, appealed to the U.S. Supreme Court.

May 17, 2021: The U.S. Supreme Court agreed to hear the case.

December 1, 2021: The U.S. Supreme Court heard oral argument.

Looking at the timeline, the NCBE should have known at least a year ahead of the July 2022 bar exam that SCOTUS would be deciding this abortion rights case just weeks before the exam’s administration. This head’s up should have given the NCBE the ability to remove or modify any test questions that could be impacted by new court decisions.

As far as the MEE questions go, abortion hasn’t been tested in any essay since at least 2008 (this is as far back as I’ve tracked the essays, so its absence could be well longer than that).

As far as the MBE questions go, again, the NCBE likely would have either removed any abortion questions or modified those questions, providing separate answer choices that would be correct under the “old” law and under the “new” law. If you see any question on your exam dealing with abortion rights, your best approach is to apply the current law.

If there is an abortion question—and that’s a big if—depending on how clear the question is, depending on how clear the answer choices are given any change in the law, and given the psychometrics resulting from the examinees’ selections on the bar exam, the examiners may decide to give credit to only one answer choice (based on the current law), give credit to two answer choices (if two answer choices are accurate under both the “old” and “new” laws), or throw out the test question entirely.

All this is to say: Answer abortion questions (and all questions for that matter) based on the current law, whatever the current law is at the time. But the likelihood of there being an abortion question on the exam is probably low.