A Trumpified SCOTUS And A Wide-Open Abortion Case Puts Roe At Its Greatest Risk Yet

on January 19, 2018 in Washington, DC.
WASHINGTON, DC - JANUARY 19: Pro-life activists try to block the signs of pro-choice activists in front of the the U.S. Supreme Court during the 2018 March for Life January 19, 2018 in Washington, DC. Activists gath... WASHINGTON, DC - JANUARY 19: Pro-life activists try to block the signs of pro-choice activists in front of the the U.S. Supreme Court during the 2018 March for Life January 19, 2018 in Washington, DC. Activists gathered in the nation's capital for the annual event to mark the anniversary of the Supreme Court Roe v. Wade ruling that legalized abortion in 1973. (Photo by Alex Wong/Getty Images) MORE LESS
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May 17, 2021 5:29 p.m.

It’s not just the Supreme Court’s recent jerk towards the right that makes its grant Monday of a major abortion case such a big deal. It’s how the justices went about deciding that they were going to wade into the issue.

The court waited several months to decide what to do with the lawsuit, a legal challenge to Mississippi’s 15-week abortion ban. And when the justices finally said they would review an appeals court decision striking down the law, the court teed it up in an extremely open-ended way.

“It’s a very big deal. And one of the reasons is the range of possibilities is wide,” said Walter Weber, senior counsel at the conservative American Center for Law & Justice, which is supporting Mississippi as a “friend of the court” in the case.

Because of a multitude of factors, the case — known as Dobbs v. Jackson Women’s Health Organization — presents the biggest threat yet to the 1973 Roe v. Wade decision that established a woman’s right to an abortion. For one, the Supreme Court hasn’t taken up a case around this type of abortion ban — one based solely on the gestational point of the pregnancy— since it decided Roe. Secondly, the court has signaled its explicit interest in assessing one of the key tenets that flowed out of Roe: that women have a right to an abortion up to the point that the fetus is viable. Finally, it comes as the court’s center of gravity has shifted drastically to the right.

“It’s really hard to see this as anything but very, very ominous for abortion rights,” Jessie Hill, an associate dean and professor at Case Western Reserve University law school who formerly worked as a lawyer for the ACLU’s Reproductive Freedom Project. “It’s a sign that the Supreme Court is ready to either overturn Roe or change it substantially.”

Choosing The ‘Most Aggressive’ Case On The Court’s Menu

As President Trump was allowed to repeatedly yank the court further to the right, states have made increasingly aggressive attempts to test the willingness of the court to weaken or altogether undo its jurisprudence around abortion rights.

While the Supreme Court has taken up other major abortion cases since Roe, those lawsuits came at abortion rights more indirectly than this current challenge. Those previous cases concerned bans on the types of procedures used in abortion, parental consent requirements and abortion clinic regulations. Earlier this term, the court also agreed to take up a case dealing with a procedural issue that arose in a separate abortion case.

The law at the heart of the Mississippi challenge is a ban on abortions after 15 weeks, which an appeals court struck down as violation of the precedent set by Roe.

Gestational bans like Mississippi’s are “more straight forward,” said Michael New, a research associate at Catholic University, and the court’s decision to review one “in itself is important.”

The several months it took for the justices to say what they wanted to do with the case made their choice to take it up all the more conspicuous. While the Mississippi case lingered on the justices’ list of petitions to consider, several other abortion cases — concerning narrower types of restrictions like an Indiana parental notice requirement — reached the court’s doorstep.

“They really had a menu of options before them, and they have taken in a sense the case that is the most aggressive” said Weber, of the conservative American Center for Law & Justice.

An Attack On The ‘Timeline For When You Can Ban Abortion’

When Mississippi sought the Supreme Court’s intervention, it teed up three questions for the court to review.

The court, in its order Monday, said it would only be reviewing first question Mississippi raised: whether “all pre-viability” bans are “unconstitutional.” It set aside the questions Mississippi presented about whether abortion clinics could bring these kinds of challenges to laws and about the legal tests put forward in the court’s post-Roe abortion decisions.

It may just be that the court set those other two questions aside, New said, because they had been dealt with in relatively recent cases. But other legal experts took it to be a signal that the court’s right wing thinks it has the votes to do something broader than what was presented in the two narrower questions.

It “suggests, with this conservative court, that they are going to shift the timeline for when you can ban abortion,” said David Cohen, professor at Drexel University’s Thomas R. Kline law school and author of “Obstacle Course: The Everyday Struggle to Get an Abortion in America.”

But the viability question, in its breadth, still gives the court a range of options for how aggressively or incrementally it wants to roll back abortion rights.

Putting aside the unlikely possibility that the court will simply affirm the appeals court decision, there are ways that it could handle the case in an extremely limited fashion. For instance, the Supreme Court could just say that the appeals court misinterpreted Roe and send the case back down for another round of litigation, or it could fashion a ruling that was extremely specific to the facts and circumstances of the Mississippi lawsuit.

But there are several other, theoretically “middle ground” approaches that in practice would open the floodgates to restrictive laws. Any decision that softened the lines around viability — widely interpreted to mean around 24 weeks — or got rid of that threshold altogether would amount to a massive win for the anti-abortion movement.

A Long Sought Strategy Coming To Fruition

For years, anti-abortion activists have put their energy towards passing so-called gestational bans that banned abortions at points in the pregnancy earlier than viability, such as 20 week bans (when, supposedly, the fetus could potentially feel pain) or when a heartbeat is detected (between six and eight weeks).

“It makes a lot of sense to press on” the concept of viability, Hill said. “Because if you sort of make the court throw up his hand and say, ‘We don’t actually know. If this is a messy medical, scientific question, maybe we should just let it sit, let states decide what it means and whatever it is they want to rely on.'”

With that deference, states could then get creative in putting forward rationales that would allow them to to ban abortions earlier and earlier in the pregnancy, if not outright, Hill said.

That kind of decision would let the courts essentially gut Roe while claiming they were not reversing it, Hill said. That kind decision may be in keeping with Chief Justice John Roberts’ reported desire to navigate the court away from decisions that are so drastic, they shred the court’s credibility altogether. But abortion rights groups won’t see it that way.

On a press call with reporters, Center for Reproductive Rights President Nancy Northup put it plainly: “The court can’t uphold Mississippi’s law without overturning Roe.”

Summer Concepcion contributed to this report.

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