Dobbs v. Jackson Women’s Health: The Supreme Court and Abortion
October 2021, Vol. 6
While this newsletter normally addresses legal issues related to personal injury or other areas of our practice, every now and then there are important topics that require attention which fall outside the scope of what we do day to day.
And because part of the purpose and goal of our newsletter is to provide topical and relevant information, this month’s version is exclusively devoted to one such issue.
Last week, the United States Supreme Court began a new term with some very interesting and controversial cases scheduled to be argued and eventually adjudicated by next summer. But of all the cases on the Court’s docket this term, none is more controversial or potentially impactful than Dobbs v. Jackson Women’s Health in which cert was granted on the specific issue of whether all pre-viability prohibitions on elective abortions are unconstitutional.
Obviously, this is a very contentious and emotional topic for many people, but the purpose of this newsletter is to address it purely from a legal perspective and provide some insight and understanding in that regard only.
Before discussing the Dobbs case, it is helpful to provide historical context. Prior to 1973, states were able to enact and enforce abortion restrictions. However, in Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court in a 7-2 decision determined that the Due Process Clause of the Fourteenth Amendment protects the right to privacy which included a woman’s right to have an abortion.
However, the Court did not prohibit states from enacting abortion restrictions; rather, it employed a balancing test weighing the right to privacy against the state’s interest in protecting the health of pregnant women and the “potentiality of human life.”
Based on that balancing test, the Court ruled that in the first trimester, the state may not regulate the abortion decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to the health of the mother. In the third trimester, once the fetus is “viable”, a state may regulate abortions or even prohibit them, as long as any law contains exceptions protecting the health of the mother.
The Roe decision remained the law in this area until 1992 when the Court issued its opinion in Planned Parenthood v. Casey, 505 U.S.833 (1992). In Casey, while the Court did not expressly overturn Roe v. Wade, it articulated a new standard to determine whether a state restriction on abortion was unconstitutional. Specifically, this new standard determined whether such a restriction had the effect of imposing an “undue burden” on the woman which was defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
And that Casey “undue burden” standard has effectively remained the law ever since, although many states have enacted abortion laws since then designed to test the applicability and limits of that somewhat amorphous test. And for the most part, the Supreme Court has stayed away from the Roe/Casey issue, only addressing whether certain state laws violated the applicable standard, without ever re-visiting that standard.
That all changed though when the Court granted certiorari in the Dobbs case.
Dobbs v. Jackson Women’s Health
On March 19, 2018, Mississippi passed the Gestational Age Act which (1) required that a physician determine the gestational age of a fetus prior to performing an abortion, and (2) prohibited any abortion where the fetus was determined to be older than 15 weeks. Jackson Women’s Health – the only licensed abortion provider in Mississippi – filed suit seeking an injunction against the state because the law violated the Casey “undue burden” standard and was therefore unconstitutional.
The District Court granted the injunction, which was then affirmed by the Fifth Circuit Court of Appeals, both of which determined that Mississippi’s law violated the Supreme Court’s standard for pre-viability abortion restrictions.
Mississippi petitioned the Supreme Court to hear the case asking the Court to address multiple issues. However, in granting Mississippi’s request to hear the case, the Court chose to address only one question:
Whether all pre-viability prohibitions on elective abortions are unconstitutional.
This was striking because, under the current framework of Roe and Casey, that question had already been answered. Any pre-viability prohibition on purely elective abortions was already deemed to be an “undue burden” and in Roe, which Casey did not expressly overrule, the Court had already determined that the only permissible pre-viability restrictions were those which were reasonably related to the health of the mother.
So, to many observers and Supreme Court experts, the fact that the Court would decide to hear this case on that limited issue, is potentially an indication that this Court – unlike its predecesors – is going to re-visit and possibly reverse and undo the Roe/Casey standard.
Certainly, that view is based in part on the current makeup of the Court. Not only was President Trump able to appoint three Justices during his recent term, but the most recent appointee Amy Coney Barrett replaced Justice Ruth Bader Ginsburg which, to many, suggests a significant shift in the ideological makeup of the Court.
Oral argument in the case is scheduled for December 1st and anyone will be able to listen live through the Supreme Court’s website.
The expectation is that an opinion will be issued next summer.
What Happens Next?
There are a number of possible outcomes. First, it is possible that the Court simply applies the Roe/Casey standard to Dobbs, in which case it will almost certainly be deemed unconstitutional.
Second, on the other extreme, the Court reverses the Roe/Casey standard and determines that abortion is not a right recognized under the Constitution. In that situation, states would be free to enact any abortion restrictions (or protections) they deem appropriate, and would be accountable to their respective electorates. There is also the possibility that if the Supreme Court reverses Roe and Casey, Congress could enact a federal law that protects the right to abortion, but that is probably unlikely.
Third, and perhaps most likely, the Court enacts a new standard that replaces Roe and Casey. In this scenario, especially in light of the makeup of the Court, this standard would probably allow states to enact more restrictive laws than previously permitted, but still preserve a woman’s right to an abortion during the early stages of her pregnancy – possibly for the entire first trimester.
Again, this is speculative and nobody knows for sure what the outcome will be, but there is no question that come next summer, everyone will anxiously be awaiting the ruling in this seismic case.
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