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Roe Might Go

The Supreme Court has agreed to hear its first abortion case since Amy Coney Barrett succeeded Ruth Bader Ginsburg.
May 19, 2021
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After a relatively quiet start, the new solidly conservative majority on the U.S. Supreme Court is preparing to wade into one of the most contentious issues of our time: abortion. The Court on Monday granted certiorari in Dobbs v. Jackson Women’s Health Organization, which involves a 2018 Mississippi law called the Gestational Age Act that bans abortions after the fifteenth week of pregnancy, with limited exceptions. The plaintiff—the sole licensed abortion provider in the state of Mississippi—successfully argued in the lower courts that the Supreme Court’s decision in Roe v. Wade precludes states from banning abortions before a fetus is “viable,” which occurs at approximately 24 weeks. (Mississippi law already bans abortions after 20 weeks, and the Jackson Women’s Health Organization reportedly won’t perform them after 16 weeks.) But the clinic failed to dissuade the Supreme Court from taking the case on the grounds that the law is already clear: pre-viability abortions are constitutionally protected.

The Court’s willingness to review the decision suggests that it might be willing to do some serious damage to Roe. The last abortion case to come before the Court—June Medical Services LLC v. Russo, from last year—produced a ruling striking down a Louisiana law requiring that doctors who perform abortions have admitting privileges at a nearby hospital. Since that 5-4 decision, Justice Ruth Bader Ginsburg died, and the conservative Justice Amy Coney Barrett took her place. Although the Court could similarly strike down the Mississippi law without disturbing Roe on stare decisis grounds—i.e., deference to precedent, reasoning that Roe has been on the books too long to tamper with now—it seems more likely that the Court took the case for a reason and will make major changes to the constitutional law governing abortion rights, perhaps including overturning Roe itself. Which is why some abortion critics are feeling celebratory while abortion-rights defenders hit the panic button.

Keep in mind that Roe is premised on a 1965 case called Griswold v. Connecticut, which recognized the right of married couples to use contraception. Contraception—like abortion—is not mentioned in the Constitution. The Court grounded the contraception right in the Due Process Clause of the Fourteenth Amendment on the theory that certain rights—such as the right to privacy vis-à-vis the government—are so fundamental that the government cannot arbitrarily trounce them even if they are not specifically delineated in the constitutional text. The right of parents to make educational decisions on their children’s behalf is another such right.

The standard for deciding whether a law violates the Constitution is also spelled out nowhere in the Constitution itself. For the most fundamental of rights—such as the right to be free from government discrimination on the basis of race—the Court has crafted and applied a “strict scrutiny” test, meaning that a law will be struck down unless the government can show that it has a compelling state interest in applying the law. In Roe (1973), the Court found that the right to abortion is “fundamental” and thus that strict scrutiny applies. It also noted that the government has compelling interests in protecting the health of the mother as well as “protecting the potentiality of human life.” As a pregnancy progresses, the latter interest increases, which is how the Court arrived at the viability threshold; once a fetus is viable—that is, capable of surviving outside the womb—the government’s interest can justify restrictions on women’s access to abortion.

In Planned Parenthood v. Casey (1992), the Court watered down Roe, replacing the application of the “strict scrutiny” test with an “undue burden” standard, which has since allowed state governments to impose greater restrictions on abortions unless a law has the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” (For other constitutional rights, the lesser options include “intermediate scrutiny”—which applies to restrictions on the basis of gender—and the lowest standard, “rational basis”; it is unclear why the Court didn’t pick one of those in Casey.) Since then, it has been up to judges to subjectively decide what sorts of obstacles are “substantial,” whatever that means, and thus unconstitutional.

The Court’s originalists and textualists—Justice Barrett describes herself as the latter—could be sympathetic to the view that Roe is on constitutionally shaky ground because the Constitution doesn’t explicitly mention abortion, and Roe considers the abortion right implicit in the Due Process Clause. But if the justices were intellectually consistent about recognizing only those rights that are express in the Constitution, they would leave vulnerable a whole host of protections against government interference that Americans take for granted.

Today, provider shortages and financial constraints limit women’s abortion access already, particularly in rural areas and lower-income communities. Policy restrictions that mandate steps like counseling and waiting periods in many states have also eroded Roe.

A reversal of Roe would put the question of abortion rights back where it was before 1973: in the hands of state legislators, and thus the voters. If people want to protect abortion rights, as decades of polling show that most Americans do, they will have to pay close attention to whom they vote into state office. As American democracy hangs by a thread in the wake of the Big Lie, there might be a silver lining to incentivizing voters to fight for their right to choose which politicians get to wield such immense power over their lives.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.