What makes Dobbs the best, and possibly last, chance to overturn Roe? 

Washington, D.C. Newsroom, Nov 28, 2021 / 00:00 am

Part of a continuing series examining the U.S. Supreme Court case Dobbs v. Jackson Women’s Health Organization, a direct challenge to the 1973 decision in Roe v. Wade that legalized abortion throughout the United States.

After nearly a half century of legal abortion throughout the United States, that precedent could fall  — or stand  — through one critical case now before the U.S. Supreme Court. Yet what makes it possibly the most significant abortion case in decades?

The Supreme Court on Dec. 1 will hear arguments in the case of Dobbs v. Jackson Women’s Health Organization, concerning Mississippi’s ban on most abortions after 15 weeks. The court will take up the question of whether all bans on pre-viability abortions are unconstitutional.

Legal experts say the case presents an ideal opportunity for the Supreme Court to reconsider previous rulings that upheld legal abortion nationwide.

The 1973 Supreme Court ruling that legalized abortion nationwide, Roe v. Wade, said that states could not ban abortion before the “viability” of the fetus — the point at which unborn child can survive outside the womb, determined by the court to be around 24 to 28 weeks into pregnancy.

Nearly 20 years later, the court upheld that ruling in Planned Parenthood v. Casey, saying that states could regulate pre-viability abortions but could not pose an “undue burden” in doing so.

Mississippi’s law bans most abortions after 15 weeks — well before the point of “viability” as established in Roe and upheld in Casey.

“The Dobbs case presents a square challenge to Roe v. Wade,” said Michael Stokes Paulsen, a law professor at the University of St. Thomas in Minnesota, in an email interview with CNA.

“So, Mississippi's law forbids abortions that Roe and Casey say must be permitted,” Paulsen said. “There's no way around the conflict between the Mississippi law and the court's precedents on abortion. One or the other has to go!”

Steve Aden, chief legal officer and general legal counsel for Americans United for Life, agreed that Roe itself is at the heart of the Dobbs case. 

“It is a tremendous historical opportunity for the court to review Roe, and finally throw it on the ash heap of history,” Aden told CNA.

While Mississippi’s law directly challenges Roe and Casey, those rulings themselves were already vulnerable and ripe for reconsideration, said O. Carter Snead, a law professor and director of the de Nicola Center for Ethics and Culture at the University of Notre Dame.

Both Snead and Aden helped author separate amicus briefs at the Supreme Court in favor of Mississippi’s law. They both explained to CNA why they think Roe and Casey were so poorly decided.

“Defenders of Roe and Casey hardly ever argue on the substance of those cases’ reasoning,” Snead said. Rather, defenders of those cases appeal to the legal doctrine of stare decisis which “invites the court  — although it does not require it  — to consider the practical consequences of undoing the prior precedent,” he said.

Justice Harry Blackmun, who authored the majority opinion in Roe, grounded the “right” to abortion in the “right to privacy.” He considered it an “unenumerated” right, Snead said, one not listed in the Constitution but nevertheless believed by some to be a right that “we basically discover through our own reflection.”

According to Snead, Blackmun traced the “right to privacy” to the due process clause of the 14th Amendment, which says that no state can “deprive any person of life, liberty, or property, without due process of law.”

However, at the time the amendment was added to the Constitution in 1868, “nobody thought that that [clause] prevented states from protecting unborn children. Nobody thought that,” Snead said. Abortion was outlawed in 30 states at the time, and the remaining states followed common law which also did not allow for abortion, Snead said.

Blackmun, influenced by a “novel” legal theory, disputed that abortion was prohibited under common law, Snead said, calling the argument “completely at odds with the historical record” and saying that it “has been debunked, but nonetheless, constantly repeated.”

The majority opinion in Roe set up a trimester framework for judging state abortion laws. States could not ban or regulate abortion in the first trimester, while they could regulate second trimester abortions but not ban them, according to the ruling. While states could ban third trimester abortions, they had to make exceptions for cases where an “appropriate medical judgment” deemed abortion necessary for the “life or health” of the mother,” Blackmun noted.

This “exception” could be interpreted in a liberal way to allow for many late-term abortions, Snead argued.

“Which means, in effect, that we have the most permissive regime of abortion, almost in the world,” Snead said. The United States is one of just seven countries which allow for legal abortion nationwide after 20 weeks.

Blackmun’s claims in the Roe ruling have not held up over time, Aden argued, including his skepticism over when life begins.

“Roe presumed that abortion would be a decision between a woman and her doctor,” Aden said, but “virtually all” abortions now are performed by doctors who are not a woman’s primary physician.

Roe’s assertion that abortion is safe “relied on eight different authorities, which were not peer-reviewed medical authorities,” Aden said. “In fact, abortion is not safer than childbirth,” he said, especially later in a pregnancy.

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If the court declines to overturn the Roe and Casey rulings, however, it might raise questions as to when — if ever — it would reconsider those rulings.

“I would never say this is the last chance to do anything,” Snead said, adding that “no case could be better set up than this one [to repeal Roe.]”

If the court does not repeal Roe, “it won’t be the last opportunity,” Aden said. “This court may, in fact, want to take Roe in bite-sized pieces as it were, and not overturn it in one fell swoop, but in significant incremental decisions.”

For instance, he said the court could simply answer that not all state pre-viability abortion bans are unconstitutional, and send the matter back to the lower courts without having repealed Roe. When the lower courts then consider the lawfulness of various state abortion bans, those cases would probably be appealed to the Supreme Court. Then the court conceivably could repeal Roe in one of those later cases.

In the Dobbs ruling, the court could also set up a new standard recognizing legal abortion, Aden said, adding that this would be unlikely.

“That’s the challenge before the court: Can they find a new standard if they junk the Casey ‘undue burden’ standard? Can they find a new standard that’s understandable, predictable, and applicable across the board?” he asked. “My bet is that they can’t, because they haven’t been able to for the 30 years since Casey, and I don’t think anything will change in Dobbs.”

Snead also said that the possibility of such a novel legal standard would be unlikely.

“To simultaneously uphold the law in Mississippi and retain the court’s authority to be the ultimate arbiter of abortion in America, you’d have to reinvent another false, and untethered-to-the-Constitution, right to abortion,” he said.

“And I don’t think that there is an appetite for that among a majority of the justices.”

Paulsen emphasized that the Dobbs case is the ideal opportunity to overturn Roe.

“There is no way around it. There is no ‘middle solution’ — no ‘compromise’ between right and wrong — that is faithful to the Constitution,” he said. “This is the case. This is the time.”