The United States Supreme Court has accepted a pro-life case that legal scholars call the “the biggest abortion case in more than a generation.” The case of Dobbs v. Jackson Women’s Health Organization will tackle the critically important issue of whether US states have any authority to enact so-called “pre-viability” prohibitions on elective abortions.
Many states have sought to protect the life and health of women and the unborn by enacting legislation on a variety of topics establishing when abortions may be performed in their state. The state of Mississippi overwhelmingly enacted pro-life legislation in 2018 called the Gestational Age Act (House Bill 1510). This legislation prohibits abortion after fifteen weeks of gestational age except in cases of medical emergencies or for severe fetal abnormality.
In adopting the legislation, the state of Mississippi articulated in the text of the law three explicit justifications for enacting it: the state’s interest in protecting the life of the unborn; the state’s interest in protecting the health of women; and the state’s interest in safeguarding and regulating the medical profession including prevention of barbaric practices that are dangerous for the maternal patient and demeaning to the medical profession.
Most abortions performed after fifteen weeks’ gestation are so-called “dilation and evacuation” procedures, the gruesome and utterly inhumane process of crushing and tearing apart the unborn child before removing pieces of the child from the womb. The Gestational Age Act rightly proclaims this procedure to be barbaric. Further, the legislation makes clear findings that this procedure risks the health of women by increasing the risks of medical complications such as pelvic infections, heavy bleeding or hemorrhage, injury to the cervix, tearing and laceration of the uterus, injury to the bowel and bladder and a host of emotional and psychological problems, among other things.
Beyond issues relating to the physical and mental health of the mother, the Gestational Age Act also details a number of important legislative findings concerning the unborn child which help establish the state’s interest in prohibiting post 15-week abortions except for medical emergencies. For example, the legislation recognizes the scientific fact that between five and six weeks the heart of the unborn child begins to beat; at about eight weeks gestation the child begins to move about in the womb; at nine weeks gestation all basic physical functions are present. Teeth, eyes and external genitalia are also present; at ten weeks the child’s vital organs begin to function. Hair, fingernails and toenails begin to form; at twelve weeks gestation the child can open and close its fingers, starts to make sucking motions and senses stimulation outside the womb.
Of critical importance to the state’s interest in protecting the unborn child is the issue of fetal pain. It is well-established that the human fetus develops neural circuitry capable of detecting and responding to pain by 10 to 12 weeks after the mother’s last menstrual period. At 14-20 weeks the child develops spinothalamic circuitry that can support conscious awareness of pain. Thus, by preventing most abortions after fifteen weeks of gestation, the state of Mississippi is acting to protect the child from a brutally painful death in the womb, one that it can feel and has awareness of as its body is being crushed and pulled apart by the abortionist.
The Jackson Women’s Health Organization, the only abortion provider in Mississippi, filed a lawsuit against the Gestational Age Act the day the legislation took effect alleging that the law bans pre-viability abortions. Within a single day, a local federal court judge, liberal Obama appointee Carlton Reeves, issued an order prohibiting the state from enforcing the law.
As the litigation proceeded, the judge refused to allow any consideration of the evidence that the state had substantial interests to protect in enacting the law. Rather, Judge Reeves ruled that the only issue to be decided was whether the 15-week mark is “before or after viability.” All other issues, according to the judge, were “irrelevant” and he refused to hear testimony from medical experts put forward by the state to establish Mississippi’s substantial interests in passing the law.
Judge Reeves issued an order permanently banning enforcement of the law. Further, the radically liberal jurist – a former ACLU of Mississippi board member – used the occasion of his ruling to issue a rhetorical broadside against the state of Mississippi, accusing the Legislature of “gaslighting,” decrying the Legislature for not expanding Medicaid after the passage of the Affordable Care Act (Obamacare), condemning what the judge called a return to “the Old Mississippi… bent on controlling women and minorities,” and concluding that the Legislature has “a history of disregarding the constitutional rights of its citizens.”
Naturally, the state of Mississippi appealed the judge’s legally flawed and invective-ridden ruling. However, the Fifth Circuit Court of Appeals upheld the lower court ruling, finding that the US Supreme Court’s precedents had created a categorical right to a pre-viability abortion and that the 15-week law infringes that right.
In an extraordinary rebuke of Judge Carlton Reeves, a Fifth Circuit court of appeal jurist, Judge James C. Ho, condemned the Reeves opinion as displaying “an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic and violent taking of innocent human life.” Judge Ho wrote that the Reeves decision “disparages the Mississippi legislation,” “equates a belief in the sanctity of life with sexism”, and “smears Mississippi legislators by linking [the law] to the state’s tragic history of race relations, while ignoring abortion’s own checkered, racial past”. Judge Ho went on to state, “It is troubling that federal courts, without any basis in constitutional text or original meaning, restrict the ability of states to regulate in the area of abortion.”
The fact that the US Supreme Court has decided to review this critical case calls into question the conclusion of the Fifth Circuit and liberal jurists like Carlton Reeves, that precedence has established a flat prohibition against banning pre-viability abortions. Indeed, as the Mississippi Petition for Certiorari points out, Supreme Court precedence has created a conflict when it comes to the ability of states to regulate pre-viability abortions.
The 1973 Roe v Wade ruling suggests that states cannot prohibit abortions before the fetus is viable, but numerous other Supreme Court rulings seem to explicitly accept that states have a right to protect women and unborn children “from the outset of the pregnancy”. Rulings have provided, for example, “[t]he State’s interest in protecting potential human life exists throughout the pregnancy.” Moreover, citing a different Supreme Court ruling, Mississippi makes the very compelling case that a strict viability line such as that imposed by Judge Reeves and the Fifth Circuit majority ties “a state’s interest in unborn children to developments in obstetrics, not to developments in the unborn” leading to troubling consequences for states that wish to protect the unborn. For example, Mississippi notes that in the 1970s it could not have prohibited abortion of a 24-week-old fetus because the fetus would not have been viable. Today, Mississippi could enact such a law.
How the Supreme Court ultimately wrestles with the many issues that this major case raises will be a source of great speculation in coming weeks and months. The fact that the Court accepted this case for review in the first place implies that there may be a majority of justices who wish to make changes to its abortion jurisprudence. Otherwise, there would be no reason to accept the case. On the other hand, it only takes the vote of four Supreme Court justices to grant a Writ of Certiorari whereas it takes a vote of five justices to form a Supreme Court majority.
There are six justices on the Supreme Court who were appointed by Republican presidents, at least five of whom are generally reliably conservative and seen as being pro-life. If these five (or six) justices decide to form a majority and issue a ruling making clear that states like Mississippi do have a right to limit pre-viability abortions as the Gestational Age Act proposes to do, will they provide any guidelines or limitations on their ability to do so, or will they leave this to future legal battles?
And what of the notion that this could be exactly the type of case that could lead to a reversal of Roe v Wade or subsequent decisions such as Planned Parenthood v. Casey? (Roe adopted a trimester framework and authorized abortions in the first trimester but Casey overturned that framework in favor of a viability analysis and an “undue burden” standard of review.) To be clear, the state of Mississippi has made it clear that this present case does not require the Supreme Court to overturn Roe or Casey, only to resolve the legal conflicts created by the previous cases. However, in a footnote to its filing, the state also makes it clear that if the Supreme Court finds that it cannot reconcile Roe and Casey with other precedents or scientific advancements showing a compelling state interest in fetal life far earlier in pregnancy than those cases contemplate, then “the Court should not retain erroneous precedent.”
In others words, the Supreme Court is not required to overturn Roe and its progeny in order to reaffirm the right of states to prohibit abortions, but it’s fine with Mississippi (not to mention many other states and countless millions of Americans) if they do.
This case will be heard by the Supreme Court this coming fall, with a decision expected in June 2022. Already, the political left is in a sheer panic. The online publication Slate writes that the “ultra conservative five-justice majority is prepared to move aggressively against Roe v Wade rather than tinker around the edges of abortion rights… it seems likely that the justices took this case for the express purpose of overturning Roe and allowing the government to enact draconian abortion bans that have been unconstitutional for nearly half a century.” The Daily Beast calls it “the perfect case to take away abortion rights.” The New York Times wrote that the case “could undermine the constitutional right [to abortion] established in Roe v Wade.”
There can be little doubt that the runup to the Supreme Court hearing in this case will entail extraordinarily heightened political action on both sides of the issue, with rallies, demonstrations and extensive advertising designed to shape public opinion. Depending on how the Supreme Court rules, there is a high likelihood that the case could also shape debate in the 2022 elections.
We will cover this major story as it develops.