The US Supreme Court term wrapped up a few weeks back. While there were some important rulings, the term lacked the type of blockbuster case that would help shape political discussion in the country and around the world, and impact the culture over the long term. The same won’t be the situation some 10 months from now when the Court will likely issue a ruling in the most consequential legal case it has heard in at least fifty years. It’s a case that squarely examines whether there is a right to abortion under the United States Constitution. This case will roil the country and impact the body politic like no other case in most people’s lifetime, very likely becoming a dominant subject of public discourse for much of 2022 and beyond. In Part One of this article, I review the writings of prominent legal scholars who make a convincing case that Roe v Wade and Planned Parenthood v. Casey were egregiously wrongly decided, leading them to conclude that there is no right to abortion in the US Constitution. I also outline the case of Dobbs v Jackson Women’s Health Organization which presents a full-on frontal assault to the notion that there is a constitutional right to abortion. In Part Two, I begin to address perhaps the most important aspect of this case – politics and how political pressure may be the only thing that could save the Court’s massively wrong and deadly conclusion that abortion is a federal constitutional right. In Part Three, I do some prognosticating to predict just how hot, intense and vicious the politics surrounding case will become, and offer a view of potential outcomes.
Dobbs v Jackson Women’s Health Organization comes to the Court from the state of Mississippi with the avowed intention of overruling Roe v. Wade and its progeny Planned Parenthood v Casey, two of the worst decisions in Supreme Court history.
It takes four justices on the Supreme Court to agree to hear a case. The very fact that at least four justices agreed to accept the Dobbs case is a strong indication that the Supreme Court may have finally decided to address and, many observers believe, likely overturn the incoherent, politically-motivated ruling finding that the US Constitution contains a right to abortion.
There can be little serious doubt that the Roe and Casey rulings are egregiously wrong as a matter of constitutional law. Here is how noted constitutional law professor Michael Stokes Paulsen summed things up in a two-part essay published at Public Discourse: “Roe is regarded, rightly, as one of the most consequential and controversial—and one of the very worst—constitutional decisions of the Supreme Court in its history. In simplest terms, Roe created a constitutional right to abortion of the life of a living human fetus. That result, and Roe’s reasoning in support of it, are indefensible from a legal standpoint. No plausible argument from the constitutional text, no rule or principle fairly derived from its structure or internal logic or deducible from other propositions contained therein, and no credible argument from historical understanding or intention remotely supports the abortion right created in Roe. Roe v. Wade is simply a lawless decision. I know of no serious constitutional scholar who defends Roe’s result as a faithful interpretation of the Constitution’s language, understood according to its natural and original meaning, as understood at the time of its adoption, or as consistent with the original intent of its adopters in 1868….In Casey, the Court, while nominally reaffirming Roe’s substantive due process holding, could not bring itself actually to embrace Roe’s reasoning as correct. Indeed, a majority of justices seemed to indicate they believed that the case was wrongly decided. Casey left Roe in place almost purely on the basis of the doctrine of stare decisis. In other words, the justices concluded the Court should stick to Roe “whether or not mistaken,” simply because it was a precedent on which the Court had staked its authority, and it might look bad if it were to reverse itself.”
The saving of Supreme Court face has contributed to the loss of life for over sixty million unborn American children. It is now up to the conservative majority on the present Court to stop the carnage and allow the American people themselves – through their elected state representatives and through direct democracy at the ballot box – to debate and decide the conditions, if any, upon which an innocent unborn child’s life should be extinguished. If the conservative majority on the Court does not do what faithful adherence to the constitution requires and rid the country of the lawless Roe and Casey decisions, the majority will do permanent damage to the legitimacy of the Court and, as I will address further in Part Three, threaten the future existence of the Republican party.
At the core of the Dobbs case is the issue of fetal viability. In Roe, the Supreme Court majority ruled that a pregnant woman had the absolute right to abort her unborn child up until the point of viability, that is when the unborn child could survive outside the mother’s womb. While tinkering with Roe’s framework, Casey retained a woman’s absolute right to abortion prior to fetal viability. (In actuality, the abortion right created by Roe and Casey is essentially absolute, up to the moment of birth. That is because the rulings protect abortions conducted for “health” reasons such as emotional or psychological worries, and concerns about age and family.)
Fetal viability is now generally considered to be around 24 weeks but that is a changing milestone. In 1973 when Roe was decided, viability was thought to occur with the start of the third trimester of pregnancy, or around 27 weeks gestation. Indeed, in their petition for certiorari, the state of Mississippi has noted that in the 1970s when Roe was decided, “Mississippi could not have prohibited abortion of a 24-week fetus because back then it would not have been considered viable. Today, Mississippi could enact such a law.”
The Dobbs case arises from legislation enacted in 2018 (the Gestational Age Act) that prohibits abortion after 15 weeks gestational age except in medical emergencies or for severe fetal abnormalities. In adopting the legislation, the state asserted several strong interests the legislation was designed to protect. This included substantially increased health risks to the mother when abortions are performed at 16 weeks gestation or later; the fact that a fetus develops neural circuitry capable of detecting and responding to pain by 10-12 weeks and at 14-20 weeks spinothalamic circuitry develops that can support a conscious awareness of pain; and that the legislation prohibits abortions six weeks after a fetus’ basic physiological functions are all present, five weeks after the child’s vital organs begin to function, and three weeks after the child can open and close his or her fingers, make sucking motions, and sense stimuli from outside the womb.
The incoherence of the Supreme Court’s abortion jurisprudence is laid bare by this conflict: the Court has repeatedly acknowledged that states have legitimate interests “from the outset of pregnancy” in protecting the health of the mother and the life of the fetus “that may become a child” but at the same time, Roe and Casey prohibit all pre-viability abortions. The state of Mississippi points to the obvious resolution of this conflict in its compelling merits brief: “Overruling Roe and Casey makes resolution of this case straightforward. The Mississippi law here prohibits abortions after 15 weeks’ gestation, with exceptions for medical emergency or severe fetal abnormality. That law rationally furthers valid interests in protecting unborn life, women’s health, and the medical profession’s integrity. It is therefore constitutional. If this Court does not overrule Roe and Casey’s heightened-scrutiny regime outright, it should at minimum hold that there is no pre-viability barrier to state prohibitions on abortion and uphold Mississippi’s law.”
Over 80 organizations have filed briefs with the Supreme Court supporting the position taken by the state of Mississippi. This includes briefs from legal scholars, ethicists, constitutional law professors, state legislators, members of Congress, scientists and biologists, women injured by abortion, and public policy groups, among others.
There are at least six current justices of the US Supreme Court whom many legal experts agree believe that Roe and Casey are unequivocally wrong. Professor Michael Stokes Paulsen ranks them in order of certainty: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh, and Chief Justice John Roberts. It will take five of the six to stick to their guns to overturn Roe and Casey.
What stands in the way of ending the unprincipled and unconscionable reign of abortion jurisprudence at the US Supreme Court? Two inter-related factors: the legal doctrine of “stare decisis,” and politics. These factors are examined in Part Two of this article.