Federal courts, including the Supreme Court, handle many important and controversial cases. As just one example, lawsuits challenging abortion rights are brought in federal court each year like clockwork. Considering the number of federal court decisions involving the pro-choice/pro-life debate in recent years, why is Dobbs v. Jackson’s Women’s Health, currently before the Supreme Court, any different?
Put simply, because it has the potential to be the most noteworthy case since Roe v. Wade. Mississippi is asking the Supreme Court to overturn Roe and Planned Parenthood v. Casey, the longstanding Supreme Court precedents that made abortion legal in some form in every state. Other cases have clarified, expanded, altered, minimized, or carved out exceptions to the central holding in Roe. But while these cases have been significant, it has never been widely predicted that the Supreme Court would simply overturn Roe. Until now.
A Quick Summary of Recent Decisions
FindLaw has a straightforward explanation of the Supreme Court’s seminal decision in Roe v. Wade. The bottom line is that, in Roe, the Court held that there was a right to privacy found throughout the Constitution and the Due Process Clause of the 14th Amendment that included a limited right for a person to control their pregnancy. But of course, Roe was not the end of the matter – not by a long shot. In 1992’s Planned Parenthood v. Casey, the Supreme Court reiterated that states could not ban abortion pre-viability, around 24 weeks. But the Supreme Court got rid of Roe‘s original trimester framework. Instead, SCOTUS told lower courts to consider whether a law restricting abortion access placed an undue burden on the right to get an abortion.
Other issues have since come before the nation’s highest court. For example, in 2016, the Roberts Court struck down a Texas law that required abortion providers to obtain admitting privileges at hospitals and meet the requirements of surgical centers. Under Casey’s precedent, the court determined that this law placed an unconstitutional burden on the ability of women in Texas to get an abortion. It upheld this decision in 2020’s June Medical Services v. Russo.
Another Texas case is currently before the Supreme Court, as well. Whole Woman’s Health v. Jackson involves the well-known Texas law that places enforcement of a six-week abortion ban in the hands of civilians, an attempt to circumvent judicial review of the law. That case does not explicitly challenge the holdings in Roe and Casey, however.
Other federal cases have come up over the years, but the rule outlined in Casey remains the law to this day.
Mississippi’s Straightforward Challenge
State legislatures opposing abortion rights often pass laws testing and challenging the extent of the constitutional protections for abortion. Mississippi’s Gestational Age Act is one of the more straightforward attempts. It bans abortions after 15 weeks except in cases of a medical emergency or severe fetal abnormality. This is well before a fetus is viable, meaning that the law is almost certainly unconstitutional under Casey.
Originally, Mississippi intended to argue that the law was constitutional even under Casey. It still argues that if the Constitution does provide for a person’s right to control their pregnancy, viability does not need to be the standard courts use. But now Mississippi has also asked the Court to overturn both Roe and Casey.
What Mississippi Is Arguing
The principle of stare decisis means that the Supreme Court typically defers to and respects past decisions to avoid confusion in the law and allows people to rely on the court’s interpretations of the Constitution when making decisions. This is not an inviolable doctrine, however, and the Courts can and has overturned past decisions on occasion.
Mississippi argues that stare decisis should not prohibit the justices from overturning Roe. Despite being long-established precedent, Mississippi argues that stare decisis is at its weakest here since it is challenging a case interpreting the Constitution. States and Congress have less ability to react to a Supreme Court decision they disagree with when the Constitution is involved compared to interpretations of federal law. Furthermore, Mississippi calls Roe and Casey “egregiously wrong” and “decades out of date.” There is no explicit mention of a right to privacy in the Constitution, Mississippi argues, and advances in technology mean that we know more about what a fetus looks like at 24 weeks and whether it can feel pain. Mississippi also argues that an unwanted pregnancy is not the burden it used to be, as birth control and adoption are readily available. Finally, because Roe has been controversial since it was first decided half a century ago, Mississippi argues that women should not reasonably rely on it as established law.
Jackson Women’s Health Organization’s Arguments
Mississippi’s lone abortion clinic is the other party to the case. If its arguments sound familiar, it is because it is reiterating the law as it currently stands and the reasoning that the Court has used for decades in upholding Roe’s central holding. Namely, that the Constitution does support the fundamental right to “body integrity and personal autonomy in matters of family, medical care, and faith.” This includes the right for a person to control their own pregnancy.
Interestingly, it has also given the Supreme Court the option to punt on the case if it wishes. It argues that the Supreme Court should not even consider overturning Roe since Mississippi didn’t argue it in its original petition to the Court.
The clinic argues that the undue burden test isn’t even relevant, as Mississippi’s law is a complete ban, not a restriction, on abortion pre-viability. Rather than an undue burden, it is quite simply a prohibition on abortions, and so under Casey it is clearly unconstitutional.
Finally, the Clinic argues that not only is Casey “precedent on a precedent” that the current court must respect under stare decisis but that the only change since Roe was decided is that abortions have become safer. It calls Mississippi’s arguments paternalistic and untrue.
What Are the Potential Outcomes of the Case?
When appointing Justices Kavanaugh, Gorsuch, and Barrett to the Supreme Court, former President Trump specifically noted he was looking for justices willing to overturn Roe. The case before the court is a vehicle for the Supreme Court to do so.
Further, the fact that the Supreme Court even took up the case – after lengthy deliberation – suggests that several justices currently on the court think there are at least five votes in favor of overturning Roe and Casey in some form. If the court wanted the law to stand as-is, it could have left it alone – the 5th Circuit Court of Appeals upheld the District Court’s decision to ban Mississippi’s law from taking effect.
So, now that the Supreme Court has it, what will it do with the case? There are three potential outcomes:
- The court overturns Roe and Casey, meaning each state will determine its own abortion laws
- The court constructs or revises Casey‘s undue burden test
- The court upholds the law as is
While it remains to be seen how the justices decide the case, because Dobbs involves questions of the right to privacy, the decision could also impact issues outside of abortion, including the right to interracial and same-sex marriages.
While the decision is not likely to come until the end of the term (Spring 2022), oral arguments on Wednesday, December 1, have helped clarify the issues at stake.
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