This case could fundamentally change the American abortion access landscape.
The Supreme Court will hear oral arguments Dec. 1 in a case that is highly anticipated and could significantly alter abortion access within the United States.
Although the court could reverse Roe v. Wade’s landmark decision, which legalized abortion in the United States, observers suggest that the justices may take more complex paths to allow states to impose stricter restrictions.
Dobbs, v. Jackson Women’s Health is a case that was based on Mississippi’s ban on abortions for 15 weeks. It could be used to help create a new standard of restrictions. This law gives the justices the opportunity to change abortion jurisprudence in a manner that is significantly different from the standards set in Roe or Planned Parenthood of Southeastern Pennsylvania (Casey), which reaffirmed Roe’s authority and established the “undue weight” standard.
These are just a few of the possible ways they could rule:
Mississippi’s law is struck down
The ban on the 15-week period could be repealed by a majority of justices, who claim it is contrary to Roe and Casey. It would likely maintain the notion that women can’t be denied abortion access before fetal viability, and therefore it wouldn’t place an “undue burden” upon them.
However, observers have been unable to ignore the court’s conservative composition of 6-3 after the addition Justice Amy Coney Barrett.
They claim that Roe was directly challenged by the court and this shows a willingness to change precedent. It could also be said that it did not immediately block Texas’ heartbeat legislation, which effectively acts as a six week ban. The court needs only four justices to hear a case, and five to make a majority decision.
Casey and Roe
Both sides of abortion debate speculate that Dobbs might be used by the Supreme Court to strike down Roe. This is something conservative activists have been seeking for decades. Roe’s repeal would be a complete repeal. This would allow the issue to be relegated to the state legislatures, which conservatives consider the best democratic way of regulating access.
Many have expressed doubt that Barrett, Brett Kavanaugh and John Roberts, more conservative justices, would accept this option due to the tension in politics and divisions surrounding the topic. Each of them have made smaller, more incremental decisions, which is a stark contrast to removing a nearly 50 year-old precedent. Stare decisis is a doctrine that defers to prior decisions. However, the court has upheld precedents such as Brown v. Board of Education (school segregation case) roughly 50 years after Plessy V. Ferguson. The court’s votes are based on the Constitution and merits of specific cases. Many have suggested that justices consider much more when deciding opinions. Particularly, the nominations of Barrett and Kavanaugh have caused a backlash from Democrats and reaffirmed doubts about the legitimacy of the court. Justices will find it difficult to accept the Dobbs decision, which is likely to be made next summer. They may be concerned about a possible political backlash and a subsequent Democratic majority in the courts.
Public opinion is also explicitly weighed in abortion jurisprudence in ways other issues don’t. A majority of the Court in Casey argued that Roe’s underlying facts hadn’t changed. They feared that Roe’s striking would appear to be the result of a change of doctrine.
The opinion read: “The Court should speak and act in a way that allows people to accept its terms for them as true principles and not compromises with political and social pressures. These compromises have no bearing on the principled decisions that the Court is required to make.”
was warned by then-Chief Justice Rehnquist that “[o]nce a Court starts looking at the currents of opinion regarding a particular judgment, it enters really into a bottomless pit from where there is simply no way out.”
HUMAN RIGHTS BEGIN IN THE WOMB
Over time, polling has shown that voters support restrictions on abortion, but not all. Gallup reported that in June 2020, for instance, a majority of Americans supported some restrictions on abortion. Half of voters believed that abortion should only be legal in certain situations (compared to 29%) and none (20%). This was reflected in Gallup’s Historical data As well. While a majority of respondents believe abortion is morally wrong, 48% identified themselves as pro-choice, compared to 46% who were pro-life.
Create a brand new standard
As it did in Casey & Roe, the court could issue further guidance to states about when they may restrict abortion. It is hard to imagine what this might look like.
A substantial amount of opposition has been shown in polling to overturn Roe, making it less politically feasible for the court to make an outright appeal. However, anti-abortion advocates point out that Roe and Doe both allow abortions for many reasons, up to birth. This would seem to contradict Americans’ preference for some restrictions.
The 15-week Mississippi restriction is theoretically a floodgates to other justifications that the justices could use to allow states to restrict abortion access.
The justices might decide that the state should intervene at an earlier stage of pregnancy because there is a possibility of fetal pain. The state could be reexamined in light of new scientific knowledge and advances in medical care to determine its interest in protecting human life.