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By David McPeak, Editor in Chief
Should Americans prepare for abortion policy to return to the legislative realm? Currently, the United States Supreme Court is considering whether to overturn Roe v. Wade, which, in 1973, held that states have insufficient interest in the life of an unborn child to justify statutory bans on elective abortion prior to viability.[1] The groundwork for Roe was laid in preceding cases where the Court found that a fundamental “right to privacy” exists as a substantive component of individual liberty protected under the 14th Amendment’s Due Process Clause.[2] The Court extended that same analysis in expansive fashion in Roe, where it determined that the fundamental right to privacy also includes the right to abortion.[3]
In this context, viability means the point at which a child can survive outside of the womb with the aid of current medical technologies.[4] In 1973 at the time Roe was decided, viability typically meant 24-28 weeks, or roughly upon entering the third trimester.[5] Thus, the Court fashioned a regime of rules revolving around a trimester framework, where it held that a state’s legitimate interest in the “health of the mother” became “compelling” at the beginning of the second trimester, and the state interest in the life of the unborn child became “compelling” at the point of viability in the third trimester.[6] In short, states were powerless under Roe to interfere with abortion during the first trimester, could narrowly regulate to protect maternal health in the second trimester, and could proscribe elective abortions all together in the third. In application, Roe’s strict scrutiny, trimester framework, meant that laws regulating abortion before the six-month mark were almost certain to be held unconstitutional.
In Planned Parenthood v. Casey, the Supreme Court revisited Roe when it considered a challenge to various pre-viability abortion regulations enacted by the state of Pennsylvania.[7] A Plurality of the Casey Court purported to retain Roe’s central holding, but also conceded that Roe, and subsequent cases, inadequately accounted for the “profound state interest in potential life.”[8] Casey’s plurality opinion, consisting of Justices O’Connor, Kennedy, and Souter, sought to better accommodate state pre-viability interests by re-engineering the framework for which courts review pre-viability regulations. Under Casey, the Court clawed back a modicum of the liberty interest defined just 19 years prior in Roe, holding that states have a “legitimate” pre-viability interest, but only to the extent that abortion regulations do not result in an “undue burden” on women seeking to terminate pre-viability pregnancies.[9] In applying that test, Casey’s Plurality upheld Pennsylvania’s 24-hour waiting period provision but struck its provision requiring spousal notice.
Out of the gate, Casey’s dissenting opinions criticized the novel “undue burden test” as unmoored from the Constitution and as “inherently manipulable.”[10] Perhaps Chief Justice Rehnquist put it most colorfully when he characterized the Plurality’s elaborate stare decisis analysis as a “façade” that “stands as a sort of judicial Potemkin Village, which may be pointed out to passers-by as monument to the importance of adhering to precedent.”[11] Justice Scalia also rejected Casey’s stare decisis analysis, confessing that he had not previously heard of the Plurality’s “new keep-what-you-want-and-throw-away-the-rest version” of that doctrine.[12] At the other end of the spectrum, Justice Blackmun would have struck the entirety of Pennsylvania’s regulatory regime, insisting that any abortion regulation be subjected to the highest judicial scrutiny.[13] Perhaps foreshadowing those who criticize Casey’s undue burden regime as unworkable in any objective sense, Justice Blackmun took solace that the Plurality left room for overturning the same provisions it just upheld—if on remand the factual record were further developed.[14]
Whatever the aim of Casey’s Plurality at the time, abortion has only grown as a fracturing force. In the years since Casey, the weighty issues swirling around abortion have exacted an outsized role in every Supreme Court nomination, thus placing the Court squarely in the political arena where Justices constantly complain it has no business existing. At the same time, both political parties are guilty of cynically wielding the issue to disparage opponents.
Today, Roe has never been on shakier ground. In Dobbs v. Jackson Women’s Health, the Court is being called to answer “whether all pre-viability prohibitions on elective abortion are unconstitutional.”[15] Dobbs stems from a 2018 Mississippi law which bans most elective abortions after 15 weeks.[16] Mississippi (“Petitioner”) argues the Court wrongly decided Roe in the first instance—thus any precedential value afforded to what remains of Roe within Casey is ill gotten.[17]
To that end, Petitioner urges the Court not to employ its prudential stare decisis doctrine as a mechanism to cover for wrong decisions. Underscoring that argument, Petitioner suggests that, among other things, the pre-viability guideposts are outdated, the undue burden standard has proven unworkable,[18] and both lack any constitutional construct—textual or otherwise.[19] It asks that the Court overrule Roe and Casey’s heightened scrutiny tests in favor of ordinary rational basis review, and uphold Mississippi’s law because it “reasonably furthers valid interest in protecting unborn life, women’s health, and the medical profession’s integrity.”[20]
Respondent Jackson’s Women’s Health is the only licensed abortion provider in the state of Mississippi.[21] In arguing that Mississippi’s Gestational Age Act unconstitutionally violates Casey by placing an undue burden on as sub-set of pre-viability abortions, Respondent attempts to concentrate the Court’s attention on the broader, societal implications it says will follow a reversal of abortion precedent.[22] The thrust of Respondent’s argument is that the Court carefully addressed the same issues raised by Petitioner when it decided Casey,[23] that no factual or legal developments over the past 30 years support reversal,[24] and that Mississippi is motivated, at least in part, by the makeup of the current Court.[25] In that regard, Respondent seeks to assert pressure on the Court’s instinct to adhere to stare decisis, characterizingCasey as “precedent on top of precedent.”[26] Respondent further focuses on the premise that the Court’s refusal to toss Roe and Casey has resulted in reliance interests in which women now organize their lives around the belief that the ability to terminate pre-viability pregnancies exists as a fundamental constitutional right.[27] Respondent asserts, at length, that women’s societal ascension in the past half-century would not have been realized but for the Court’s watershed decision in Roe.[28] Moreover, they urge the Court to heavily weigh the impact that turning its back on nearly 50 years of abortion precedent would have on the Court’s legitimacy.[29]
Meanwhile, Texas has passed a law which challenges Roe’s central holding even more aggressively than Mississippi’s, which the Court refused to stay while that law is being litigated.[30] At the federal level, the House of Representatives recently passed legislation to codify Roe and Casey while also limiting states’ ability to regulate abortion in ways the Court has previously held to be consistent with Casey’s undue burden regime.[31]
The United States Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health on December 1, 2021. A decision is still forthcoming as of this writing.
[1] Roe v. Wade, 410 U.S. 113 (1973)
[2] Brief for Petitioner at 15, Dobbs v. Jackson Women’s Health, No. 19-1392 (U.S. argued Dec. 1, 2021).
[3] Roe v. Wade ,410 U.S. 113, 153 (1973).
[4] Planned Parenthood v. Casey, 505 U.S. 833, 860 (1992).
[5] Brief for Petitioner, supra, at 40.
[6] Roe v. Wade, 410 U.S. 113, 163 (1973).
[7] Planned Parenthood v. Casey, 505 U.S. 833 (1992).
[8] Id. at 878.
[9] Id. at 878.
[10] Id. at 986.
[11] Id. at 966 (Rehnquist, J., dissenting).
[12] Id. at 993 (Scalia, J., dissenting).
[13] Id. at 926 (Blackmun, J., dissenting).
[14] Id.
[15] Brief for Petitioner, supra, at 1.
[16] Mississippi’s Gestational Age Act, Miss. Code Ann. § 41-41-191.
[17] Brief for Petitioner, supra, at 2.
[18] Brief for Petitioner, supra, at 19.
[19] Brief for Petitioner, supra, at 17.
[20] Brief for Petitioner, supra, at 11.
[21] Brief for Respondent at 6, Dobbs v. Jackson Women’s Health, No. 19-1392 (U.S. argued Dec. 1, 2021).
[22] Brief for Respondent, supra, at 2.
[23] Brief for Respondent, supra, at 3.
[24] Brief for Respondent, supra, at 23.
[25] Brief for Respondent, supra, at 6.
[26] Brief for Respondent, supra, at 9.
[27] Brief for Respondent, supra, at 37.
[28] Brief for Respondent, supra, at 37-41.
[29] Brief for Respondent, supra, at 2.
[30] Juliegrace Brufke, House Passes Bill to Codify Roe v. Wade in Wake of Texas Abortion Law, The New York Post (Sept. 24, 2021, 3:19 PM), https://nypost.com/2021/09/24/house-passes-bill-to-codify-roe-v-wade-in-wake-of-texas-abortion-law/.
[31] Id.
