Abortion, Part III: Dobbs v. Jackson (and the Looming Demise of Roe v. Wade)

• Part I: Abortion and America: The Impossible Debate
• Part II: Abortion and the Law (plus a podcast on the topic) (Today’s post is also available as a podcast.)

We’ve now looked at abortion-related moral and political philosophy, abortion polling, abortion’s history in the United States, Griswold v. Connecticut‘s establishment of the right to privacy, Roe v. Wade‘s role in legalizing abortion nationally, and Planned Parenthood v. Casey‘s modification of Roe‘s holding.

On to Part III…

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One Supreme Court justice from Planned Parenthood v. Casey is still on the bench — Clarence Thomas, who is now in his 31st year on the Court. Thomas signed on to the dissent in Casey that stated, “We believe that Roe was wrongly decided, and that it can and should be overruled.”

It’s clear that Justice Thomas hopes the Supreme Court of the United States (SCOTUS) will overturn Roe, and about 30% of Americans join him in that hope. To overturn Roe‘s precedent, pro-life advocates have hoped that, one day, the Court might be conservative enough to overrule it.

That day might be nigh. Since Roe, states have periodically passed laws averse to it, but federal courts regularly issue injunctions and overturn such laws, so they never go into effect. The Supreme Court rarely even hears an abortion case; instead, a lower court strikes down the law, and upon appeal SCOTUS declines to “grant cert.” (Granting cert, or a “writ of certiorari,” is when at least four justices think the Court should hear an appeal, and it therefore asks for the evidence and testimony from lower court rulings.) The lower court ruling therefore stands, and the law remains struck down.

However, thanks to a rightward lurch during Donald Trump’s presidency, the Court now has six conservatives (Chief Justice John Roberts — more moderate than conservatives would like, but still right-leaning — and associate justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). They serve alongside just three liberals (associate justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan).

Last year, an abortion case — one that could substantially roll back Roe and/or Casey — came to them. If the Court granted cert, that alone would mark a shift in the Court’s philosophy regarding those important precedents, and it could be a harbinger of a dramatic undoing of Roe when the Court issues its ruling.

The question was — would the justices agree to hear the case?

They did.

The case is Dobbs v. Jackson Women’s Health Organization, and it might transform United States abortion law. For that reason, today we’ll take a close look at it. I’ll split the post into three phases:

1. Facts of the case and lower court decisions
2. Oral arguments from each side — including justices’ reactions to those arguments
3. Considerations and predictions for the June ruling

(And remember, a podcast will be forthcoming!)

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1. Facts of the case & lower court decisions

In March of 2018, the Mississippi legislature, working with Governor Phil Bryant, passed a state law — the Gestational Age Act. The act banned abortions after 15 weeks, except in cases where the mother’s life is at risk or there’s a severe fetal abnormality. One day later, the state, represented by State Health Officer Thomas E. Dobbs, was sued by the Jackson Women’s Health Organization, the last abortion provider in the state.

This lawsuit was expected. In fact, another 20 or so Republican-controlled states across the country were crafting similar laws, all in the hopes that lawsuits would eventually get appealed up to the now conservative-leaning Supreme Court, a Court which Republicans hope would then overturn Roe v. Wade.

Since it was a matter of whether the state law contradicted federal law as set by judicial precedent, the lawsuit went to a federal district court — the lowest level of our federal court system. Original jurisdiction went to the United States District Court for the Southern District of Mississippi, where Judge Carlton W. Reeves placed an injunction on the state so it couldn’t enforce the act, and then, respecting the Roe precedent, he struck down the act.

The state appealed up to the next tier of the federal court system — the federal court of appeals. In 2019, the Fifth Circuit Court of Appeals upheld the district court’s ruling in a unanimous decision. The Gestational Age Act remained unconstitutional.

Undeterred, Mississippi then appealed up to the Supreme Court in 2020. In May of 2021, when the Court would reveal what cases it would take up, nervous pro-choice and pro-life advocates watched closely, wondering if SCOTUS would break from its recent pattern and actually grant a writ of certiorari to a restrictive abortion case.

It did. A key threshold was crossed. Roe was endangered.

This past December, the Supreme Court heard oral arguments from both sides. It was, unsurprisingly, the most high-profile case of 2021. Over 140 amicus curiae briefs were filed. (Translated as “friend of the court,” amicus curiae briefs are pieces of evidence submitted by outside parties not directly a part of either side of the case. The average number of amicus briefs per Supreme Court case in its 2019-2020 session was just 16, and no single case had over a hundred amicus briefs since 2015.)

Below, I hope to faithfully summarize oral arguments by pulling from the transcript.

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2. The oral arguments — and justices’ receptivity to those arguments

Advocates for both sides made cases that seemed unwilling to compromise. Let’s start with Mississippi, which built a case around Roe v. Wade as poorly decided and therefore ripe for overturning. The state’s Solicitor General, Scott Stewart, positioned the state’s argument around the bad precedents of Roe and Casey, saying that they “haunt our country,” have “poisoned the law,” and “have no basis in the Constitution.”

Without that Constitutional basis, Stewart echoed the argument laid out in Part II — abortion should be left to the people as reflected through their states. Calling it a “hard issue,” Stewart said abortion “demands the best from all of us, not a judgment by just a few of us.”

Three of the nine justices seemed to clearly agree with that reasoning: Thomas, Alito, and Kavanaugh. Justice Thomas has long been hostile to Roe, and we can assume his mind is already made up dating back to at least Planned Parenthood v. Casey, when he signed on to the dissent that described Roe as “wrongly decided” and that it should be “overruled.”

Justice Alito, like Thomas and the late Justice Antonin Scalia, leans into “originalist” judicial philosophy, an approach that has made Thomas and Alito our two most conservative justices. In the Dobbs oral arguments, Alito put forward that the Constitution’s framers — and framers of the Fourteenth Amendment, with its due process clause a cornerstone of the Roe decision (discussed in Part II) — did not have abortion in mind when drafting their respective documents. He raised that neither the country nor the states built a right to abortion into their original constitutions, nor did the drafters of the Fourteenth Amendment recognize it as a right as late as 1868, when the Fourteenth Amendment was ratified. (A misconception, here, is that abortion didn’t exist back then, which is why the framers couldn’t have conceived of it. As covered in Part II, abortion very much did exist. However, abortions were protected by “common law”; they were not enshrined in the founding or governing documents of the country and states.) That being so, Alito implies that abortion couldn’t possibly be a “Constitutional right,” as Roe says it is.

Justice Kavanaugh agreed, noting abortion was not mentioned in the Constitution. Kavanaugh opined the court should remain “scrupulously neutral on the question of abortion — neither pro-choice nor pro-life.” That being so, Kavanaugh and Alito would almost certainly prefer the Tenth Amendment take precedence, kicking the issue to the states.

Separately, Kavanaugh raised that in cases of abortion, “there are two interests at stake, [with the] fetal life at stake as well.” There, Kavanaugh channels the dilemma presented from Part I: whether there’s a narrative around the fetus in addition to the woman, and if so, when that narrative begins. In that vein, Justice Alito twice inquired about when a fetus develops “personhood.”

Knowing the Court had a conservative bend that would lean into the above arguments, the advocates for Jackson Women’s Health Organization built their case around another judicial principle that might win over a justice who favors judicial restraint — the concept of stare decisis, or the preference for the Court to defer to earlier decisions for the sake of legal consistency and predictability. Arguing that the Roe and Casey lines must hold, U.S. Solicitor General Elizabeth Prelogar practically begged the Court to honor precedent.

Anticipating this argument, Justice Kavanaugh listed a series of overturned precedents which were for the good of law and the country. He included Brown v. Board (which abolished de jure segregation in schools), Gideon v. Wainwright (which guaranteed one’s right to counsel in state courts), Obergefell v. Hodges (which guaranteed same sex marriage across the country), and others. He described these decisions as some of the “most consequential and important in the Court’s history,” and that if SCOTUS had adhered to stare decisis in those cases, the United States “would be a much different place.” In other words, just because something was set as precedent doesn’t necessarily mean it was the right decision. In Brown v. Board, for example, the separate-but-equal precedent set by Plessy v. Ferguson (1896) was in desperate need of an update.

Nevertheless, Prelogar’s argument had three agreeable allies on the bench — SCOTUS’s liberal justices: Breyer, Sotomayor, and Kagan. All three leaned heavily into the importance of stare decisis.

Justice Breyer has long championed protecting the legitimacy of the Court by keeping it apolitical (and that included resisting the idea of expanding the Court at a time when his fellow liberals would have stood to gain from the expansion). Although he acknowledges the clearly divergent ideologies on the Court, Breyer has noted the comradery on the Court — Scalia and Ginsburg were great friends, after all — and justices’ success in keep away from the limelight, a distance afforded by their lifetime tenure.

Stare decisis, Breyer argued, is a way to reinforce the apolitical nature of the Court. If SCOTUS starts reversing precedents due to ideological swings, the American people may perceive SCOTUS’s rulings as a result of the ideological composition of the Court rather than what laws say and mean, or what’s right and what’s wrong. In time, that would, in Breyer’s words, “subvert the Court’s legitimacy beyond any serious question.”

An illegitimate Court, Breyer fears, would have disastrous consequences. Since the Court itself has no mechanism of enforcement — it has no army or police force — it relies totally on its legitimacy to have any impact on law. A country or government that sees SCOTUS as a political branch may start ignoring it. These days, it’s not hard to imagine a political actor ignore a ruling, since the Court can’t do anything about it. (President Andrew Jackson, among others, showed it’s possible; when the Supreme Court, led by titanic Chief Justice John Marshall, ruled against President Jackson’s preferred outcome in Worcester v. Georgia (1832), Jackson did not support the ruling. A likely apocryphal quote from Jackson conveniently summarizes the power dynamic: “John Marshall has made his decision, now let him enforce it.”)

Justice Sotomayor seemed the most animated of the liberal trio, asking dramatically, “Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts?” She even noted that Mississippi wrote the Gestational Age Act after the Court’s composition made it favorable to upholding such a state law — a clearly well-timed political move.

Sotomayor also reminded the Court that alongside the Tenth Amendment is the Ninth — we have unenumerated rights, and courts have a long history of being arbiters of those. Since the Supreme Court has determined access to pre-viability abortions as a Constitutional right, it is therefore a Constitutional right.

Justice Kagan’s line of questioning seemed to focus on the principle of “reliance.” She noted that women over the last 50 years have come to rely on easy access to abortion, which also hits on the stare decisis principle of the importance of consistent laws. The advocates for Jackson Women’s Health Organization leaned hard into this one; Solicitor General Prelogar felt that “on a very individual level, there has been profound reliance.” Prelogar argues that women clearly rely on their right to control their reproduction.

In total, so far we know it’s likely justices Thomas, Alito, and Kavanaugh will vote to overturn Roe while justices Breyer, Sotomayor, and Kagan will vote to preserve it. With the count at 3-3, we’re now left to divine the intentions of the three remaining justices: Chief Justice Roberts and associate justices Gorsuch and Barrett.

All are varying degrees of conservative, with Roberts the most moderate. Therefore, watching the Chief Justice is the key to seeing if the liberals even have a chance.

Roberts seemed most interested in discussing the 15-week line versus the post-Casey 24-week “viability” line. Roberts didn’t seem to think “viability” was “an issue” in Roe, as “it wasn’t briefed or argued.” Although Justice Blackmun mentioned viability in his majority decision in Roe, Roberts describes it as merely “dicta” — an incidental remark rather than binding precedent.

Importantly — and I believe we’re starting to get at the heart of Roberts’s thinking and the Court’s most likely landing place — Roberts also noted that 15 weeks should be sufficient to learn of one’s pregnancy and get it terminated. Roberts seemed to think 15 weeks gives a “fair choice” to the mother so there’s no “undue burden,” against which Casey had warned. “Viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”

The implication is that other “lines” could exist when determining when to allow a pregnancy. He is, of course, right that the line is arbitrary. As discussed in Part II, for much of American history that threshold was “quickening,” which occurs around four months. Roe used trimesters. Some states have put forward bills that want a detectable heartbeat to be the threshold. Others say it should be when the fetus/baby has pain receptors. Viability, in other words, is just one of many subjective lines to draw when determining when a state can restrict abortion.

Roberts pursuing that line of questioning suggests he may seek to find a middle ground: upholding Roe while also allowing the 15-week ban. Still, for Roberts’s more moderate position to win the day, he would need to at least win a plurality of the bench.

That makes Gorsuch and Barrett’s thoughts crucial. However, they did less clear signaling than did the other seven justices. That said, based on past positions and some comments during oral arguments, they’re certainly closer to the Thomas-Alito-Kavanaugh trio than to the liberal trio. The question is whether they’re closer to Thomas-Alito-Kavanaugh or closer to Roberts’s middle ground.

Justice Barrett seemed interested in the argument from Mississippi’s advocate, Solicitor General Stewart, that noted circumstances since 1973’s Roe ruling have changed. Barrett, on multiple occasions, wanted to address the rise of “safe haven” laws, which allow parents to give up newborns younger than 30 days at various locations. States began enacting such laws in 1999, well after Roe. Further, women are also more entrenched as successful participants in the workplace and their careers can better survive a pregnancy. Further still, contraception has become more diverse and accessible. Barrett might therefore argue that circumstances have changed since Roe, when such laws and customs weren’t yet in place, which could then justify overturning the precedent.

On the other hand, Barrett expressed concern over a rollback of the right to privacy possibly leading to undermining that right in other areas, like same-sex marriage and contraception. In other words, Dobbs v. Jackson could become a precedent for more than just abortion cases. Stewart, however, rejected the idea, as those other liberties are fairly settled and not seriously challenged, unlike abortion. He notes that those other precedents have “engendered strong reliance interests that have not produced negative consequences,” unlike “the purposeful termination of a human life.” Whether that answer is enough to satisfy Barrett remains to be seen.

Justice Gorsuch seemed most interested in how Casey deviated from Roe, noting “Casey rejected Roe‘s trimester framework and replaced it with an undue burden standard,” which has “proved difficult to administer,” a nod to the evolving science on viability and the competing judgements from those who evaluate it. He wondered if there was “any other intelligible principle that the Court could choose.” This line of reasoning makes him seem open to Roberts’s “middle ground” position, as Barrett might be.

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3. Considerations and predictions

The question the Supreme Court justices must answer is: Are all “pre-viability” prohibitions on abortions, including Mississippi’s, unconstitutional? In other words, should states like Mississippi be barred from enacting pre-viability laws limiting abortion?

To those questions, there are three general, possible SCOTUS answers.

1. SCOTUS might say “Yes” — that all pre-viability prohibitions on abortion remain unconstitutional. The Court would join the lower courts in striking down the Mississippi law and reaffirm the Court’s position on abortion. Roe, as modified by Casey, survives.
2. SCOTUS might say “No” — that all pre-viability prohibitions on abortion are not unconstitutional, and that Roe was wrongly decided. Roe is fully overturned. In this scenario, the Court could withdraw the federal government from the issue altogether, allowing states to enact total abortion bans. If Roe is overturned, 12 states have trigger laws that automatically ban abortions, with varying exceptions like fetal abnormality, rape, incest, and health of the mother. It’s expected at least another dozen or so Republican-controlled states could realistically join them, bringing bans to about half the states in the country.
3. Or, the Court might narrowly tailor an opinion that says something like “No, all pre-viability prohibitions on abortion are not unconstitutional, including Mississippi’s . . . but some still are.” In this scenario, it might allow the Mississippi 15-week ban and call that the new threshold for the time being. Roe survives but is rolled back.

It’s this last possibility to which I think Roberts is trying to guide the Court, and I think at least a couple justices seemed interested in setting a new line.

The implications to this scenario do not end there, however. It’s feasible that earning a ruling that allows abortion bans at 15 weeks is not the last attempt from pro-life advocates to roll back abortion access. Once the line is moved to 15 weeks, we can expect another state could follow with a more restrictive number — say, 13 weeks, which marks the end of the first trimester. The Court might see moving the line another two weeks as not a big deal. Then, with the new line at 13 weeks and the threshold line now clearly pliable, new “heartbeat” bills, which move the line to when the embryonic heartbeat is detected — usually around 6 to 8 weeks, which can be before a woman knows she’s pregnant — could be the next case to arrive at a listening SCOTUS.

In sum, scenario #3 could lead to a slow erosion of Roe, a path that could lead to later overturning Roe while avoiding the whiplash ruling of doing it now, which offers cover to this current Court. Even justices Thomas and Alito could see this long-term, cover-providing strategy and join Roberts’s middle ground to ensure a strong 6-3 result.

As for predictions for this June’s decision, it’s worth knowing that it can be hard to predict justices’ votes on high-stakes cases. They sometimes poke at ideas during oral arguments to see if there’s anything there, but the advocates for one of the sides offers sufficient responses.

That said, it sounded to me like the conservatives had their minds made up about at least partially rolling back Roe. In fact, the liberal Sotomayor’s passionate language reads to me like someone who knew her side had lost, and she was testing a dissent.

Before December’s oral arguments, my ranking of likelihood was:

1. (most likely) Rollback of Roe v. Wade to 15 weeks
2. Roe upheld
3. (least likely) Roe fully overturned

But now:

1. Rollback of Roe v. Wade to 15 weeks
2. Roe overturned
3. Roe upheld

We’ll see in June!

If you made it this far, thanks for hanging with the three parts, which totaled (*checks statistics*) almost ten thousand words. Your stamina is impressive.

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Today’s featured image was found at SupremeCourt.Gov