Potentially The Most Important Supreme Court Case About Abortion Rights Since 1992

Dobbs v. Jackson Women’s Health Organization

On December 1, 2021, the Supreme Court heard oral arguments in Dobbs v. Jackson Women's Health Organization. I’d been dreading the inevitable challenge to Roe since the presidential debate between Hillary Clinton and Donald Trump on October 16, 2016, when he said he would appoint Supreme Court justices who would overturn that 1973 watershed case that legalized abortion in all 50 states during the first two trimesters. He appointed not one, not two, but three justices whose records or personal views seemed to indicate that they would be open to changing abortion laws. We got some indication of the way it would go when, on September 1 of this year, the Court, in a 5-4 decision, decided not to block the Texas six-week abortion ban. They then heard arguments on November 1 about the Texas case, and a decision is pending.

The December 1 case from Mississippi involves a ban on abortions after 15 weeks. Jackson Women’s Health Organization—the only licensed abortion clinic left in that state, filed the case. The question posed to the Court was whether Mississippi’s law banning nearly all abortions after 15 weeks’ gestational age is unconstitutional.  

Scott Stewart, solicitor general for the state of Mississippi, opened with this argument:

“Mr. Chief Justice, and may it please the Court: Roe versus Wade and Planned Parenthood versus Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise. For 50 years, they’ve kept this Court at the center of a political battle that it can never resolve…. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people. Roe and Casey have failed, but the people, if given the chance, will succeed. This Court should overrule Roe and Casey and uphold the state's law.”

A little necessary background on Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), since these cases are mentioned repeatedly as precedents. Roe relied in part on a trimester framework. It made abortion totally legal in the first trimester with no restrictions, and said that in the second trimester, the state “may impose regulations on abortion that are reasonably related to maternal health,” and that in the third trimester, “once the fetus reaches the point of ‘viability,’ a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.” These are my calculations: If pregnancy is about 40 weeks, then a trimester is a little more than 13 weeks, meaning that when Roe was argued, viability was considered to begin at approximately 26 weeks (it is now considered to begin at 24 weeks).

Planned Parenthood v. Casey both reaffirmed Roe and made slight changes. The case originated in Pennsylvania, where the legislature had amended its abortion laws in the late 1980s to require the following: a person seeking an abortion would have a 24-hour waiting period; a minor seeking an abortion would need the consent of one parent; and a married woman would have to notify her husband of her intention to abort her pregnancy. The law was challenged in the Supreme Court.

Apparently, the 5-4 split of the Casey decision was a bitter one. The Court upheld the provisions in the Pennsylvania law except for the husband’s notification requirement—and Roe was upheld. The Court did move away from the trimester framework, adopting instead the “undue burden” standard, but it still kept viability: According to Oyez, “For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an ‘undue burden,’ which is defined as a ‘substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.’”

Some have argued that relying on the undue burden standard is unworkable because state regulations are “subject to mere rational review” and “cannot be applied by state courts consistently, predictably, and without prejudice.” A 1993 article published in Temple Law Review just after Casey argues that the “Court’s test invites judges to roam freely where speculation might take them, which will result in regulations that effectively proscribe”—that is, forbid—“a woman's fundamental right to an abortion.”

In Casey, Justice Sandra de O’Connor made some very poignant statements:

In a joint opinion filed with the clerk today, we have done so, and we conclude that the central holding of Roe should be reaffirmed. Some of us as individuals find abortion offensive to our most basic principles of morality but that can’t control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. 

Justice Anthony Kennedy followed O’Connor’s statements with this long yet relevant and eloquent quote that shows the reasoning behind the upholding and reaffirming of Roe and the constitutionality of these decisions:  

Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Our precedents “have respected the private realm of family life which the state cannot enter.” These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. These considerations begin our analysis of the woman’s interest in terminating her pregnancy but cannot end it for the liberty at stake is in a sense unique to the human condition and so unique to the law. 

The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear, that these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist that she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and of our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society. 

Now for these basic reasons, the essential judgment in Roe versus Wade was well within our constitutional heritage.

Both O’Connor and Kennedy were nominated to the Supreme Court by Ronald Reagan. If only Trump’s nominees to the Court—Gorsuch, Kavanaugh, and Barrett—could concur with and see the wisdom in that precedent. But alas, it appears, as many suspected and feared, that they will not.  

Arguing against the 15-week ban was Julie Rikelman, litigation director for the Center for Reproductive Rights and Elizabeth Prelogar, Solicitor General of the United States (Prelogar also argued against Texas’s six-week ban on November 1).

Justice Amy Coney Barrett asked them both about safe-haven laws, starting with Julie Rikelman:

“So it seems to me…both Roe and Casey emphasize the burdens of parenting, and insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy. Why don’t the safe-haven laws take care of that problem?”

(Nearly every state has safe-haven laws; they vary slightly but in general allow women to surrender unwanted infants very soon after birth at police departments, fire stations, or churches without consequence—as long as the baby has not been abused.)

Julie Rikelman responded that the arguments she is making and that were made in Roe and Casey are not focused on the “burdens of parenting.” She said:  

“Instead, pregnancy itself is unique. It imposes unique physical demands and risks on women and, in fact, has impact on all of their lives, on their ability to care for other children, other family members, on their ability to work. And in particular in Mississippi, those risks are alarmingly high. It’s 75 times more dangerous to give birth in Mississippi than it is to have a pre-viability abortion, and those risks are disproportionately threatening the lives of women of color.”

In fact, a recent report from the Commonwealth fund found that “the U.S. has nearly double the number of maternal deaths per 100,000 live births compared to other wealthy, developed nations,” and according to the Centers for Disease Control and Prevention, “Black women are three times more likely to die from a pregnancy-related cause than White women.”

Maybe you already have a kid or two (indeed 59 percent of women who seek an abortion already have a child), you have a job, and you get pregnant. Justice Barrett implied that there should be no problem seeing that next pregnancy through to term since you have the option of leaving your newborn at a fire station within two or three days of birth and walking away, no question asked. It was a rather shocking argument.

Justice Clarence Thomas, who was one of the four dissenters in that bitter 5-4 Casey decision—and the last person from that case remaining on the court—asked about criminal charges against a woman who had taken cocaine during her pregnancy, and what if she had taken that cocaine pre-viability? Rikelman is momentarily stumped, not because of the cleverness of the question but because it was an asinine non-sequitur. But everyone already knows how Thomas will vote. And it was surprising to hear a question from Thomas, as he’s usually the Court’s most reticent speaker. After hearing his line of questioning, I thought it would behoove him to remain so.

Gorsuch focused on throwing out viability and relying instead on undue burden, and he and Julie Rikelman went back and forth, until she finally concluded that without viability, undue burden “would not be workable.” Justice Alito alluded to the same question, and Rikelman reiterated to him that the “once the Court recognizes that that liberty interest deserves heightened protection, it does need to draw a workable line, and viability is a line that logically balances the interests at stake.”

The last thing Alito said to her before Chief John Roberts interrupted them was this: “There are those who say that the rights of personhood should be considered to have taken hold at a point when the fetus acquires certain independent characteristics.” Medical technology has changed, he told her, and may continue to change. Meaning that, in his mind, the line of viability—24 weeks—will have to be changed because we’ll know more about fetal development—and that the fetus at some earlier stage—or at any stage—may deserve rights of personhood and therefore be protected under the Fourteenth Amendment—the same amendment used to argue that a woman has a right to abortion. According to the Guttmacher Institute, by November this year, 11 states have introduced legislation to ban abortion by establishing fetal personhood.

Chief John Roberts asked Rikelman: Why would 15 weeks be an inappropriate line? After all, he said, 15 weeks is not a “dramatic departure from viability.” Rikelman pointed out:

“People who need abortion after 15 weeks are often in the most challenging circumstances…people who have … had a major health or life change, a family illness, a job loss, a separation, young people or people who are on contraception or pregnant for the first time and who are delayed in recognizing the signs of pregnancy, or poor women, who often have much more trouble navigating access to care.”

But she also reiterated that getting rid of viability as a line would mean there would be no stopping point:

“States will rush to ban abortion at virtually any point in pregnancy. Mississippi itself has a six-week ban that it’s defending with very similar arguments as it’s using to defend the 15-week ban.”

There are some really big questions at stake here, and it’s unclear how the justices will decide and what they will decide: Will the Court overturn Roe v. Wade and Casey entirely and let each state legislature make its own unique abortion laws? Will they redraw the line at 15 weeks for states that want that limit—but not allow states to prohibit abortion before 15 weeks? Or will the 15-weeks limit then apply to all states, meaning states that allow abortion until viability would have to change their laws—and deny abortions for women after 15 weeks?

Kavanaugh, who, like Thomas, faced credible accusations of sexual misconduct during his confirmation hearings  to the Supreme Court, seemed to be looking for every angle to justify overturning Roe v. Wade and Casey: He mentioned that overturning Roe would allow the Court to return to neutrality on the topic; he mentioned a litany of precedents the Court has overturned in the past; he suggested that no law could accommodate both the interest of the woman and the interest of the fetus.

To Kavanaugh’s long prepared list of precedents that had been overturned, Justice Sotomayor commented: “Of all of the decisions that Justice Kavanaugh listed, all of them…except for maybe one, involved us recognizing and overturning state control over issues that we said belong to individuals.” It was a great rebuttal.

On the subject of neutrality, Kavanaugh said to Julie Rikelman:

“I think the other side would say that the core problem here is that the Court has been forced by the position you're taking and by the cases to pick sides on the most contentious social debate in American life and to do so in a situation where they say that the Constitution is neutral on the question of abortion…and they would say, therefore, it should be left to the people, to the states, or to Congress.”

She responded:

“A few points if I may, Your Honor. First, of course, those very same arguments were made in Casey, and the Court rejected them, saying that this philosophical disagreement can’t be resolved in a way that a woman has no choice in the matter. And, second, I don’t think it would be a neutral position. The Constitution provides a guarantee of liberty. The Court has interpreted that liberty to include the ability to make decisions related to child—childbearing, marriage, and family. 

Women have an equal right to liberty under the Constitution, Your Honor, and if they’re not able to make this decision, if states can take control of women's bodies and force them to endure months of pregnancy and childbirth, then they will never have equal status under the Constitution.

Kavanaugh said, in addressing U.S. Solicitor General Elizabeth Prelogar: There’s the interest of the mother and the interest of the fetus—both cannot be accommodated.

“You have to pick. That’s the fundamental problem. …….and why should this Court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this? And there will be different answers in Mississippi and New York, different answers in Alabama than California, because they’re two different interests at stake and the people in those states might value those interests somewhat differently. Why is that not the right answer?”

Prologer answered:

“Justice Kavanaugh, it’s not the right answer because the Court correctly recognized that this is a fundamental right of women, and the nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them or not.”

Kagan, Breyer, and Sotomayor all defended Roe v. Wade and Casey with logic and conviction. But there are only three of them—four if by chance Chief Justice John Roberts joins them. And four votes won’t be enough to uphold Roe and Casey.

We’ll have to wait till next June to hear the Court’s decision.