Today the US Supreme Court announced it would take up the issue of abortion in the upcoming fall term in a case that promises to be significant.
The case is called Jackson Women’s Health Organization vs. Dobbs. This is the background from the case:
On March 19, 2018, Mississippi enacted House Bill 1510, entitled the “Gestational Age Act” (“the Act”).1 The Act provides that, in most cases, an abortion cannot be performed until a physician first determines and documents a fetus’s probable gestational age. Then,
[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not perform, induce, or attempt to perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.
The legislature found that most abortions performed after 15 weeks’ gestation are dilation and evacuation procedures and that “the intentional commitment of such acts . . . is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.” It also found that developments in medical knowledge of prenatal development have shown that, for example, the abilities to open and close fingers and sense outside stimulations develop at 12 weeks’ gestation. Finally, it found that abortion carries risks to maternal health that increase with gestational age, and it noted that Mississippi has legitimate interests in protecting women’s health.
On the day the Act was signed into law, Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors, Dr. Sacheen Carr-Ellis (collectively “the Clinic”), filed suit challenging the Act and requesting an emergency temporary restraining order. The next day, the district court held a hearing and issued a temporary restraining order.
The district court also granted the Clinic’s motion to limit discovery to the issue of viability. It determined that the Act “is effectively a ban on all elective abortions after 15 weeks,” and “[g]iven the Supreme Court’s viability framework, that ban’s lawfulness hinges on a single question: whether the 15-week mark is before or after viability.” Under this view, Mississippi’s asserted state interests were irrelevant and the State’s discovery was aimed at rejecting the Supreme Court’s viability framework, not at defending the Act within that framework.
Let me digress here for a moment. The district judge who got the show rolling and hamstrung the ability of Mississippi to defend itself was our old buddy Carlton Reeves. He may be most famous for comparing Trump supporters to the Klan, though it’s hard to tell given his efforts to be inflammatory. Here is some of our coverage of his jurisprudence: Federal Judge Says Pro-Lifers Are Like the Klan and Men Should Have No Voice on Abortion; Who Are the People Deciding Our Fate from the Bench? Here’s a Judge You Don’t Want in Charge, and Federal Judge Shows Why CJ John Roberts Was Dead Wrong About There Being No Obama Judges.
Mississippi appealed to the Fith Circuit and lost, see BREAKING: Judge Rules to Block New Mississippi Abortion Ban. The state then appealed to the Supreme Court. But they didn’t do so until shortly after Amy Coney Barrett was confirmed. The justices have considered the granting the appeal at more than a dozen conferences, and it seemed to be going nowhere…until today.
The Supreme Court on Monday said it will review Mississippi’s ban on abortions after 15 weeks of pregnancy, taking up a direct challenge to Roe v. Wade just a few months after its newest conservative justice joined the bench.
The Mississippi ban, which has been blocked by lower courts since it was enacted in 2018, will be one of the first reproductive rights cases argued before the Supreme Court since Justice Amy Coney Barrett was confirmed in October, giving conservatives a 6-3 majority that is widely expected to curtail abortion access.
The court will consider the heart of Roe by hearing arguments on whether all bans on abortion prior to the point of fetal viability are unconstitutional.
This could very well be the most important abortion decision of the past 10 or so years because even though Mississippi’s appeal included three questions:
(1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed under Planned Parenthood v. Casey‘s “undue burden” standard or Whole Woman’s Health v. Hellerstedt‘s balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.
the Supreme Court is only going to hear arguments on issue #1. This is not an argument over procedure; it is a question that will frame the abortion debate in the future. If the Court agrees with Mississippi, then the door is open for those states that wish to regulate all abortions. If the abortion industry wins, then all “pre-viable” babies can be killed without mercy. As Jeanne Mancini of March for Life observes, “the United States is one of only seven countries – including China and North Korea – that allows abortions through all nine months of pregnancy. An overwhelming majority of Americans agree that this goes way too far, in fact 70% think abortion should be limited to – at most – the first three months of pregnancy.”
This is the third significant abortion case (by my count, YMMV) the Supreme Court has taken up in the past five years. Last March, Chief Justice Roberts sided with the liberal bloc and voted to strike down a Louisiana law that required any abortionist to have admitting privileges at a hospital in the state in which they practiced. There is currently a Kentucky case awaiting argument that will decide if the State Attorney General can defend a Kentucky abortion law that the Kentucky health secretary refuses to defend. Roberts has shown a reluctance to take on “culture war” cases, like those involving gun rights and abortion, because of a genetic abnormality that left him with neither guts or a spine and because he seems obsessed with protecting the “image” of the Supreme Court. Two significant abortion cases, close together, could indicate that he’s lost control of the Supreme Court’s docket, and Thomas and Alito are driving the train.
The Roe vs. Wade “trimester” rubric was effectively killed off in Planned Parenthood vs. Casey and replaced by a viable/non-viable choice for the courts.
(1) Women have the right to choose to have an abortion prior to viability and to do so without undue interference from the State; (2) the State can restrict the abortion procedure post-viability, so long as the law contains exceptions for pregnancies which endanger the woman’s life or health; and (3) the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.
It is important to member that Casey is particularly vulnerable to being overturned because it was a 5-4 decision and a mere three-justice plurality decided the key parts of the decision.
One is hesitant to predict what the Supreme Court will do, but I have a lot of hope for this case. There is no reason for the Court to take the time to hear a case on the viable/non-viable standard when that standard is already the law of the land. The Supreme Court teeing up the core holding in Casey hints that there may be the votes to effectively gut that decision and allow the state to do what it should be able to do, that is, enact and enforce laws and regulations that will limit the ability of children to be slaughtered in the womb.
Read Jackson Women’s Health vs. Dobbs