ROE AND CASEY UNDER ATTACK: WILL THE SUPREME COURT OVERTURN LANDMARK ABORTION PRECEDENT IN DOBBS V. JACKSON WOMEN’S HEALTH ORGANIZATION?

By: Theresa Green, Volume 106 Staff Member

On December 1, 2021, the Supreme Court will hear oral arguments for Dobbs v. Jackson Women’s Health Organization, the first major abortion-related case since Justices Brett Kavanaugh and Amy Coney Barrett joined the Court.[1] The case involves a Mississippi law that prohibits nearly all abortions after fifteen weeks of gestation, and the Court will consider whether all pre-viability abortions are unconstitutional.[2] The Court’s responses during oral arguments will ultimately provide a much-anticipated indication of where the new Court will stand on abortion-related issues, especially in light of more recent challenges to abortion rights, namely Texas S.B. 8.[3] Because of the potential impact this case could have on abortion jurisprudence, it is essential to understand what exactly both sides will argue before the Court.

I. BACKGROUND

On March 19, 2018, Mississippi enacted a law that prohibits abortions after fifteen weeks of gestation with very limited exceptions.[4] Called the Gestational Age Act (the “Act”),[5] this law represents one of the strongest attacks on abortion in the country.[6] In response, the only abortion clinic in Mississippi, Jackson Women’s Health Organization (the “Clinic”), quickly sued Mississippi (the “State”),[7] challenging the Act as unconstitutional under Roe v. Wade[8] and Planned Parenthood v. Casey,[9] which both recognized the constitutional right to pre-viability abortion. The District Court for the Southern District of Mississippi granted an injunction to block the law’s enforcement,[10] and the Fifth Circuit affirmed.[11] Mississippi petitioned for a writ of certiorari, and in May the Court announced that it would hear the case.[12]

II. SUMMARY OF ARGUMENTS

A. THE CLINIC URGES THE SUPREME COURT TO AFFIRM THE PERMANENT INJUNCTION OF THE 15-WEEK BAN

The Clinic maintains that the judgment of the Fifth Circuit, which granted a permanent injunction to block the Act’s enforcement, should be affirmed.[13] First, the Clinic argues there is no justification for overruling Roe and Casey. Indeed, the Court has already considered the arguments Mississippi makes here in Casey, where the Court deliberately affirmed Roe[14] and thus affirmed the “most central principle” of abortion jurisprudence: that until fetal life can be sustained outside a person’s body, it is for the pregnant person, and not the state, to decide whether to continue the pregnancy.[15] The Court’s previous affirmation to uphold a pregnant person’s choice demonstrates “there is no special justification for a different outcome now.”[16]

Second, the Clinic asserts that Mississippi has no serious alternative to offer in place of the viability line that could sustain a stable right to abortion.[17] The viability line refers to Casey’s holding that before viability, or a fetus’ ability to survive outside of the womb, a state may regulate abortion but not “in such a definitive way that a woman lacks all choice in the matter.”[18] In response to the State’s first proposal to hold instead that the Act satisfies “any level of scrutiny,” the Clinic argues this would “leave women, state officials, and the lower courts at sea.”[19] The Clinic asks, “[s]tripped of the viability line, how would federal courts evaluate these arguments on a case-by-case basis?”[20] This proposal would not provide courts or legislatures with enough “guidance as they seek to address [abortion rights] in conformance with the Constitution.”[21] In other words, “[t]he fallout would be swift and certain.”[22]

In response to the State’s second proposal to uphold the Act under an “undue burden” analysis, the Clinic says this is “equally unprincipled and unworkable.”[23] The State has argued that “states may prohibit abortion before viability if doing so does not prevent a ‘significant number’ of people from obtaining abortion,”[24] and that the Act meets this test because “4.5% of the women who obtained abortions [from the Providers in 2017] did so after 15 weeks.”[25] However, the Clinic contends “[t]his reasoning is incompatible with continuing to recognize an individual constitutional right to decide whether to continue a pregnancy . . . .”[26] Both of the State’s proposed alternatives to the viability line “would upend the balance struck in Casey and ultimately extinguish ‘the woman’s liberty to determine whether to carry her pregnancy to full term.’”[27] Thus, the Clinic urges the Court to recognize, in accordance with its own precedent, that “[u]ntil viability, a state may regulate, but not ban, abortion.”[28]

B. THE STATE ARGUES THAT THE SUPREME COURT SHOULD UPHOLD THE ACT, THUS OVERRULING ROE AND CASEY

Mississippi maintains that the Court should overrule Roe and Casey, uphold the Act, and reverse the court of appeals’ judgment.[29] The State recognizes this case as an opportunity to set abortion precedent “right” by overruling Roe and Casey and rejecting a viability rule.[30] First, the State argues that the Roe and Casey decisions and a viability rule are “egregiously wrong” because they “have no constitutional basis.”[31] The State alleges that “[a] right to abortion has no basis in history or tradition,”[32] and that the “Court has never endorsed another privacy or liberty interest that involves purposefully ending a human life.”[33] Furthermore, the State argues that Roe and Casey lack stare decisis effect because they “show[ed] so little regard for precedent” and thus “warrant less—not more—precedential respect.”[34]

Second, the State argues that legal, medical, and policy developments encourage the Court to “recognize that knowledge changes and . . . the Constitution does not bind States to a long-outdated view of the facts.”[35] Third, the State rejects any argument that reliance interests support the retention of the Court’s abortion precedents or the embrace of a viability rule.[36] Specifically, the State disregards respondents’ arguments that the right to abortion has become “deeply embedded” in American culture, that people organize their lives “in reliance on the availability of abortion,” or that a woman’s ability to control when or if she becomes a mother has been crucial to reaching gender equality.[37] Lastly, the State argues that at minimum the Court should reject a viability rule because such line-drawing should be left to the legislature.[38]

III. THE SUPREME COURT SHOULD FIND THAT ALL PRE-VIABILITY BANS ARE UNCONSTITUTIONAL

The Supreme Court should affirm the lower court decisions and grant the Clinic a permanent injunction to block the Gestational Age Act’s enforcement. The Clinic’s arguments are most convincing, and they have the power of Supreme Court precedent supporting them.

In Roe, the Court held that inherent in the Due Process Clause of the Fourteenth Amendment is a fundamental “right to privacy” that protects a pregnant woman’s choice whether to have an abortion, and that this “right to privacy” is protected against state action.[39] Furthermore, Roe stands for the proposition that in the first trimester of pregnancy, the state may not regulate the abortion decision; in the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health; and in the third trimester, where 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.[40] In Casey, the Court considered whether to overrule Roe, and it affirmed.

If the Court allows Mississippi’s fifteen-week ban to survive, it will overturn Roe and Casey and effectively permit states to prohibit abortion before viability. Doing so will cause immense and irreparable physical, emotional, and economic harm to people who need to end a pregnancy after fifteen weeks.[41] Of the tens of thousands of people who obtain an abortion each year, ending a pregnancy earlier than fifteen weeks is, for the most part, impossible.[42] Indeed, “[m]ore than half of second-trimester abortion patients miss the window for a first-trimester abortion simply because of delays in recognizing or suspecting they are pregnant.”[43]

Banning abortions in this way will have an especially disproportionate impact on Black women,[44] who are more likely to die from pregnancy complications than any other demographic group,[45] and who will be forced to carry pregnancies to term despite potential health risks if they are not able to travel out of state for an abortion.[46] If the Court lifts the injunction, the Gestational Age Act will inevitably force people who need to end a pregnancy after fifteen weeks but who are unable to do so safely to attempt to end their own pregnancies.[47]

Furthermore, allowing Mississippi’s fifteen-week ban to stand will leave open the door for states to pass even more restrictive regulations on abortions, like Texas S.B. 8, which has made abortion functionally illegal in Texas by banning most abortions after six weeks.[48] To avoid such catastrophic consequences, the Court should affirm the lower courts’ permanent injunction of the Act and preserve Roe and Casey.

 

[1] Dobbs v. Jackson Women’s Health Org., 945 F.3d 265 (5th Cir. 2019), cert. granted, 141 S. Ct. 2619 (U.S. May 17, 2020) (No. 19-1392); Nina Totenberg, The Supreme Court Sets a Date for Arguments in Case That Could Challenge Roe v. Wade, NPR (Sept. 20, 2021), https://www.npr.org/2021/09/20/1038972266/supreme-court-date-roe-wade-dobbs-jackson-womens [https://perma.cc/E8LT-R4KR].

[2] Dobbs, 945 F.3d 265, cert. granted, 141 S. Ct. 2619 (granting certiorari to consider the question “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional”).

[3] S.B. 8, 87th Leg., Reg. Sess. (Tex. 2021).

[4] Miss. Code Ann. § 41-41-191 (West 2018). The law makes exceptions in the case of medical emergencies or severe fetal abnormalities, but not rape or incest. Id.; see also Jenny Gathright, Mississippi Governor Signs Nation’s Toughest Abortion Ban into Law, NPR (Mar. 19, 2018), https://www.npr.org/sections/thetwo-way/2018/03/19/595045249/mississippi-governor-signs-nations-toughest-abortion-ban-into-law [https://perma.cc/JYL7-YM7E].

[5] Miss. Code Ann. § 41-41-191.

[6] Cf. S.B. 8, 87th Leg., Reg. Sess. (Tex. 2021); Maggie Astor, Here’s What the Texas Abortion Law Says, N.Y. Times(Sept. 9, 2021), https://www.nytimes.com/article/abortion-law-texas.html [https://perma.cc/5BU9-Q3F4].

[7] Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536 (S.D. Miss. 2018); Richard Fausset, Mississippi Bans Abortions After 15 Weeks; Opponents Swiftly Sue, N.Y. Times (Mar. 19, 2018), https://www.nytimes.com/2018/03/19/us/mississippi-abortion-ban.html [https://perma.cc/A8ZK-KTX4].

[8] 410 U.S. 113 (1973).

[9] Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992).

[10] Jackson Women’s Health Org., 349 F. Supp. 3d at 545.

[11] Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019), cert. granted, 141 S. Ct. 2619 (U.S. May 17, 2021) (No. 19-1392).

[12] Id.; see also Colin Seeberger, U.S. Supreme Court Takes Up Pre-Viability Abortion Ban Case in Major Threat to Abortion Rights, Ctr. Am. Progress (May 17, 2021), https://www.americanprogress.org/press/statement/2021/05/17/499578/statement-u-s-supreme-court-takes-pre-viability-abortion-ban-case-major-threat-abortion-rights [https://perma.cc/DP9M-FF7H].

[13] Brief for Respondents at 51, Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (No. 19-1392).

[14] Id. at 9 (citing Casey, 505 U.S. at 871).

[15] Id.

[16] Id. at 10.

[17] Id.

[18] Casey, 505 U.S. at 850.

[19] Brief for Respondents, supra note 13, at 43.

[20] Id. at 44.

[21] Id. (quoting Casey, 505 U.S. at 845).

[22] Id. at 45.

[23] Id. at 47.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at 50 (citing Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 869–70 (1992)).

[28] Id.

[29] Brief of Petitioners at 24, Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (2021) (No. 19-1392).

[30] Id. at 4–7.

[31] Id. at 5, 8.

[32] Id. at 8.

[33] Id. at 9.

[34] Id. at 10–11.

[35] Id. at 15.

[36] Id. at 18.

[37] Id. at 18–19.

[38] Id. at 20–24.

[39] Roe v. Wade, 410 U.S. 113, 164 (1973).

[40] Id.

[41] Brief for Respondents, supra note 13, at 28.

[42] Id. at 30 (first citing Brief of Soc. Sci. Experts as Amici Curiae in Support of Respondents, Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (2021) (No. 19-1392); then citing Elizabeth Nash, Jonathan Bearak, Rachel K. Jones, Naomi Li & Lauren Cross, Mississippi Is Attacking Roe v. Wade Head On—The Consequences Could Be Severe, Guttmacher Inst. (Aug. 17, 2021), https://www.guttmacher.org/article/2021/08/mississippi-attacking-roe-v-wade-head-consequences-could-be-severe [https://perma.cc/8C96-23XD]).

[43] Id. (citing Eleanor A. Drey, Diana G. Foster, Rebecca A. Jackson, Susan J. Lee, Lilia H. Cardenas & Philip D. Darney, Risk Factors Associated with Presenting for Abortion in the Second Trimester, 107 Obstetrics & Gynecology128, 130 (2006)).

[44] Abortion and Gender Equality: Spotlight on Dobbs v. Jackson Women’s Health, Ctr. Reprod. Rts. (Nov. 9, 2021), https://reproductiverights.org/supreme-court-case-mississippi-abortion-ban-gender-equality [https://perma.cc/VP5A-6HTX] (“Abortion bans disproportionately impact women of color, young women, women with low incomes, rural women, and others facing discriminatory barriers to care.”).

[45] Nicquel Terry Ellis & Adrienne Broaddus, A Crisis Within a Crisis, CNN (Aug. 25, 2021), https://www.cnn.com/interactive/2021/08/us/black-women-maternal-mortality-pandemic [https://perma.cc/4Z7V-FSXZ].

[46] Nicquel Terry Ellis, Advocates Fear Texas and Mississippi Abortion Laws Will Worsen the Black Maternal Health Crisis, CNN (Oct. 11, 2021), https://www.cnn.com/2021/10/11/us/abortion-ban-impact-on-black-women/index.html[https://perma.cc/B4PH-4N2V].

[47] Brief for Respondents, supra note 13, at 29 (citing Brief of Amici Curiae Am. Coll. of Obstetricians & Gynecologists, Am. Med. Ass’n, Am. Acad. of Fam. Physicians, Am. Acad. of Nursing, Am. Acad. of Pediatrics, Am. Ass’n of Pub. Health Physicians, et al. in Support of Respondents, Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (2021) (No. 19-1392)).

[48] S.B. 8, 87th Leg., Reg. Sess. (Tex. 2021); see also Astor, supra note 6.