Are all pre-viability prohibitions on elective abortions unconstitutional?
This case asks the Supreme Court to determine whether Mississippi’s ban on all elective abortions after fifteen weeks of pregnancy is constitutional. Petitioner Thomas Dobbs argues that the Court should overturn the precedent establishing a constitutional right to pre-viability abortions—Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey—or alternatively, reject viability as a measuring tool. In response, Respondent Women’s Health Center contends that the Court should uphold the constitutional right to abortion because there is no compelling reason to overrule the previous abortion precedents finding such a right. The Court’s decision on this case has serious implications for the rights of women, the role of religion in law-making, and stare decisis.
Questions as Framed for the Court by the Parties
Whether all pre-viability prohibitions on elective abortions are unconstitutional or not?
In 2018, Mississippi passed the Gestational Age Act (“HB 1510”), which prohibits abortions after 15 weeks, except for in cases of medical emergency or severe fetal abnormality. Jackson Women's Health Org. v. Dobbs at 269. HB 1510 defines “gestational age” as the age “calculated from the first day of the last menstrual period of the pregnant woman.” Id. at 269. Additionally, HB 1510 contains purported facts on fetal development including when a fetus’s heart starts beating, when it starts moving in the womb, when vital organs begin developing, and the risks a second trimester abortion poses to the health of a mother. Id. at 270. HB 1510 also applies penalties to abortion providers that include license suspension or revocation. Id. at 269.
The day HB 1510 was to go into effect, Jackson Women's Health Organization (“Women’s Health”), the only Mississippi abortion clinic, and one of its providers, Dr. Sacheen Carr-Ellis, filed suit in federal district court challenging the constitutionality of HB 1510 and asking for an emergency temporary restraining order. Id. at 269. The district court granted the temporary restraining order. Id.
Women’s Health then amended their complaint to argue against the constitutionality of the law. Id. at 271. The district court rejected Thomas Dobbs, a Mississippi State Health Officer, and other interested parties’ (“Dobbs”) argument that the law was constitutional because of scientific advancements suggesting fetuses could sense outside stimulation at twelve weeks. Id. The district court ordered that the fact-finding scope be limited to whether the 15-week mark is before or after viability. Id. Dobbs objected to this narrowing of discovery, particularly in opposition to the district court’s ruling that his expert medical witness was inadmissible and irrelevant. Id. at 270. This expert witness argued that fetal pain might be possible after 15 weeks. Id.
The district court granted summary judgement to Women’s Health and permanently enjoined HB 1510 after applying the viability standard from Planned Parenthood of Southeastern Pennsylvania v. Casey (“Casey”), which reaffirmed the right of a woman to seek an abortion before the viability of a fetus (commonly understood as around 24 weeks). Id. at 271–72. The district court held that HB 1510 violated the due process rights of women seeking pre-viability abortions in Mississippi. Id. at 269–70. The Fifth Circuit affirmed the district court’s decision, holding that the Supreme Court’s precedent categorically created a right to a pre-viability abortion. Id. at 274.
Dobbs filed a petition for certiorari, which was granted on May 17, 2021. The Supreme Court granted writ to address the question of whether all pre-viability prohibitions on elective abortions are unconstitutional.
CONSTITUTIONAL RIGHT TO ABORTION
Petitioner Dobbs argues that the Constitution does not provide a right to abortion and, therefore, a state can freely ban abortions at any time during pregnancy, as long as the regulation is “rationally related to legitimate government interests.” Brief for Petitioners, Dobbs et al. ("Dobbs"), at 13. Dobbs contends that the text of the Constitution does not mention abortion at any time. Id. at 12. In comparison, Dobbs notes that while the Tenth Amendment denies states several powers such as coining money or making treaties, it does not deny states the power to restrict abortion. Id.
Furthermore, according to Dobbs, a right to abortion cannot arise from the word “liberty” in the Due Process Clause of the Fourteenth Amendment, because “liberty” only implicates fundamental rights that are deeply rooted in United States' history and tradition. Brief for Petitioners at 12. Dobbs further argues that, at the time of the Fourteenth Amendment’s ratification, the public would have understood that “liberty” did not cover abortion because many states already restricted abortion at that time. Id. at 12–13. Dobbs also distinguishes Obergefell v. Hodges, which holds that “liberty” includes a right to same-sex marriage, on the ground that a right to marry is fundamental to this nation's tradition, whereas a right to abortion is not because nothing in America’s Constitution, history, or tradition makes it fundamental. Id. at 13. Thus, Dobbs argues that abortion regulations only need to pass rational basis review to determine the constitutionality of HB 1510. Id. at 36. According to Dobbs, Mississippi has legitimate state interests in protecting the life of the fetus, the health of women, and the integrity of the medical professions. Id. at 36–37.
Women's Health responds that the right to abortion is firmly grounded in the Fourteenth Amendment. Brief for Respondents, Jackson Women's Health Organization et al. ("Women's Health") at 17. According to Women's Health, physical autonomy and body integrity are essential elements of liberty protected by the Due Process Clause. Id. For example, Women’s Health points out that the Court has held that the right to decide whether to accept medical treatment, the right to use contraception, etc. are all included in the word “liberty.” Id. at 17–18.
Moreover, Women's Health contends that it does not matter that some states prohibited abortion when the Fourteenth Amendment was ratified. Brief for Respondents at 20. If such reasoning were to be taken seriously, according to Women's Health, Brown v. Board of Education, which bans racial segregation in public schools, would have been wrongly decided, since the same Congress that enacted the Fourteenth Amendment also segregated the public schools in the District of Columbia. Id. Women's Health also argues that the right of a person to the possession of their own body is recognizably important in the common law tradition and this nation's history, pointing out that women enjoyed greater right to abortion during the nineteenth century than in the 1970s. Id. at 21.
BINDING FORCE OF PRECEDENT
Dobbs argues that the Court should overrule Roe v. Wade (“Roe”) and Planned Parenthood of Southeastern Pennsylvania v. Casey (“Casey”), both of which held that the right to abortion is constitutionally grounded under the word “liberty” of the Fourteenth Amendment. Brief for Petitioners at 14. Dobbs first contends that Roe and Casey are grievously wrong because there is no right to abortion in either the Constitution or United States' tradition. Id. at 14–15. According to Dobbs, in deciding Roe, the Court wrongly held that the Constitution protects a general right of privacy. Id. at 15. Dobbs also argues that the Court's precedents present an unfeasible legal standard because it is too subjective to decide whether a burden is "undue." Id. at 19.
Additionally, Dobbs argues that Roe and Casey have disturbed the democratic principle of self-governance by prohibiting “the people” from addressing this critical policy question. Brief for Petitioners at 23. According to Dobbs, these cases undermine the Court's authority because the abortion cases inevitably insert the Court into a political question. Id. at 25. Dobbs also contends that legal and factual developments since Roe and Casey were decided undermined their central holdings. Id. at 28. Legally, Dobbs points out that the right to abortion is the only constitutional right that involves the termination of a human life. Id. Factually, Dobbs argues that greater protection of pregnant women and better access to contraceptives can relieve a woman's burden to bear the child. Id. at 29–30. Dobbs argues that there are no reliance interests for retaining Roe and Casey because abortion jurisprudence has been fractured and unsettled for many years. Id. at 31, 33.
In response, Women's Health argues that the Court should uphold Roe and Casey. Brief for Respondents at 9. Women's Health notes that the Court already considered all the arguments that Dobbs makes on the right to abortion and the viability line back in Casey and explicitly rejected them. Id. Additionally, Women's Health contends that abortion jurisprudence is clear and workable. Id. at 22. According to Women's Health, the Court has over the years reaffirmed the central holding of Roe, holding that a state cannot ban abortions before viability. Id. Moreover, Women’s Health points out that the undue-burden test, which Dobbs argues is too subjective, only applies to abortion regulations, whereas the present case involves an abortion ban. Id. at 23.
Women's Health also disagrees with Dobbs’ argument that modern contraception and legal changes have rendered abortion unnecessary for women to participate equally in society. Brief for Respondents at 34. First, Women's Health argues that the right to decide if and when to have children is fundamental to the notion of individual autonomy and, thus, no policy change that promotes gender equality would ever render such a decision unnecessary. Id. Second, Women's Health refutes Dobbs' position that contraception is universally accessible and affordable. Id. at 35. Third, Women's Health points out that gender equality has not been reached in our society and, even if it has, there is no reason to take away women's right to make their own decisions. Id. at 35–36. Women's Health further argues that the right to abortion has become embedded in this country’s history and culture: for nearly half a century, women have organized their lives in reliance on their ability to control their reproductive lives, and research shows that the right to pre-viability abortion is still essential to women’s equal participation in the economic and social sphere. Id. at 36–37.
EFFECTIVENESS OF THE VIABILITY LINE
If the Court refuses to overrule Roe and Casey, Dobbs argues alternatively that the Court should reject viability as a determining line to prohibit abortion. Brief for Petitioners at 38. According to Dobbs, a viability line is unsupported by the Constitution because it, like the abortion right, is not based in the Constitution. Id. at 39. Dobbs also contends that upholding the viability line would prevent a state from protecting its interests, which are present throughout pregnancy. Id. at 41. Dobbs further argues that a viability line is arbitrary because it depends on the progress of obstetrics, not the development of the fetus. Id. at 43. Moreover, Dobbs contends a viability line is also incompatible with Casey and Gonzales v. Carhart, which upheld the prohibition of some pre-viability abortions. Id. at 44. Dobbs therefore argues that, if the Court does not overrule Roe and Casey altogether, it should apply the undue-burden test throughout pregnancy. Id. at 47.
Women's Health responds that the viability line is the central holding of Roe and Casey and there is no reason to overrule it. Brief for Respondents at 12. According to Women's Health, the Court has reiterated and reaffirmed the viability line many times in subsequent cases, such as June Medical Services v. Russo and Gonzales. Id. at 14. Women's Health contends that no legal or factual change supports abandonment of the viability line. Id. at 22–23. Further, Women’s Health disagrees with Dobb’s argument that the viability line is arbitrary because (1) federal courts have uniformly applied the viability line to abortion cases for fifty years; (2) research shows that the current viability line has not changed for thirty years. Id. at 23, 25. Women's Health also argues that Dobbs has not provided any alternative to the viability line to sustain the right to abortion. Id. at 41. According to Women’s Health, if the Court agrees with Dobbs and holds that HB 1510 satisfies “any level of scrutiny,” leaving the issue of scrutiny level for another day, the effect would be equivalent to overruling Roe and Casey because any abortion ban would have a chance to pass constitutional muster. Id. at 43.
EQUALITY AND THE RIGHTS OF WOMEN
Melinda Thybault et.al. (“Thybault”), in support of Petitioners, argues that late term abortions severely injure a significant number of women and can cause anguished grief and profound sorrow. See Brief of Amici Curiae of 375 Women Injured by Second and Third Trimester Late Term Abortions and Melinda Thybault, et al., in support of Dobbs, at 4. Thybault also argues that HB 1510 supports the physical health of women because later term abortions have a greater risk of adverse consequences for women. Id. at 22. Similarly, Concerned Women for America (“CWA”) believes that it is false and misleading to suggest that women need abortion to have equality. See Brief of Amici Curiae of Concerned Women for America, in support of Dobbs, at 2. The CWA argues that the Supreme Court has continuously failed to give enough weight to the various harms that abortion can have on women. Id. at 3. The CWA also argues that equating women’s great concern for the life and dignity of a fetus to sexism does a grave injustice to women. Id. at 9. The CWA admonishes the court for treating women as a monolith and assuming the pro-choice lobby speaks for all women. Id. at 14.
In contrast, the National Asian Pacific Women's Forum et.al. (“NAPW”) in support of Women’s Health, argues that abortion care access is necessary to protect the emotional well-being and financial security of Asian American and Pacific Islander (“AAPI”) women, who face significant, often racist, obstacles to getting abortions. See Brief of Amici Curiae of National Asian Pacific American Women’s forum, Asian Americans Advancing Justice, and Organizations Representing the Interests of Asian American and Pacific Islander Women filed, in support of Jackson Women’s Health Organization, at 2. The coalition of NAPW further argues that to overturn Casey and Roe would permit states to enforce similar bans, which would include sex-selective abortion bans based on racial stereotypes that harm AAPI women. Id. at 3. Similarly, the National Women's Law Center (“NWLC”), in support of Women’s Health, argues that abortion is essential to protecting the autonomy, health, and economic opportunity of people who can become pregnant. See Brief of Amici Curiae of National Women’s Law Center, et al., in support of Jackson Women’s Health Organization, at 4. The NWLC argues that the Mississippi ban would compound the generational trauma of people of color, people with disabilities, queer folks, and folks with a history of forced sterilization. Id. at 7. Further, the NWLC argues that the Mississippi ban would infringe on a person’s right to determine their life path and would also violate their bodily autonomy. Id. at 6.
RELIGIOUS INTERESTS ON ABORTION
The Roman Catholic Dioceses of Jackson and Biloxi, Mississippi, in support of Dobbs, argue that the Supreme Court has a sacred duty to protect the fundamental right of life, that human life and dignity absolutely begins from the moment of conception and that therefore abortion should not be protected. Brief of Amici Curiae of Roman Catholic Diocese of Jackson and Roman Catholic Diocese of Biloxi, in support of Dobbs, at 12. Similarly, the Jewish Prolife Foundation et.al. (“JPF”) argue that abortion is antithetical to Torah Principles and that the act itself—along with the entire industry—violates all Jewish morals and ethics. Brief of Amici Curiae of Jewish ProLife Foundation, The Coalition for Jewish Values, Rabbi Yacov David Cohen, Rabbi Chananya Weissman, and Bonnie Chernin (President, Jewish Life League) in support of Dobbs, at 3. Additionally, JPF argues that the decisions of Roe and Casey were tragic human rights violations that would be remedied by the Mississippi law at question in this case. Id. at 4.
In contrast, Catholics For Choice, et al., in support of Women’s Health, argues that many religions support that it is a woman’s moral prerogative in deciding to terminate a pregnancy and that, in such situations, an abortion are morally allowable. Brief of Amici Curiae of Catholics for Choice, et al., in support of Jackson Women’s Health Organization at 1. Catholics for Choice asserts that the Mississippi ban in this case is not based on religious consensus and in fact ignores the views of many individuals and organizations of faith. Id. at 2. Indeed, Catholics for Choice points out that there is a lack of consistent teaching in the Catholic church on when life begins. Id. at 4. Catholics for Choice further argues that by taking the approach that Mississippi’s interest is in protecting unborn life from the moment of conception, the Ban actually disrespects the numerous religious views of its many Mississippi citizens that do not agree with this view of when human life begins. Id. at 9.
THE ROLE AND IMPORT OF PRECEDENT
The American Center for Law and Justice (“ACLJ”), in support of Dobbs, asserts that stare decisis is important to adjudication in general, but that in this case it should not persuade the Supreme Court to continue affirming decisions they know to be incorrect over the Constitution itself. See Brief of Amici Curiae American Center for Law and Justice, in Support of Dobbs, at 2. The ACLJ argues that the Roe and Casey decisions—landmark abortion decisions—are flawed precedents and that it would go against the Constitution to decide against Dobbs in this case. Id. at 8.
In contrast, the Lawyers' Committee for Civil Rights under Law (“LCCRL”), in support of Women’s Health, maintains that Roe and Casey are rules of law and components of liberty that absolutely cannot be renounced. See Brief Amici Curiae of Lawyers’ Committee for Civil Rights under Law, in support of Respondents, at 4. LCCRL further argues that stare decisis is necessary to promote and protect an evenhanded, predictable, and consistent development of legal principles. Id. at 5.
The authors would like to thank Professor Sheri Lynn Johnson for her insights into this case.
- Adam Liptak, Supreme Court to Hear Abortion Case Challenging Roe v. Wade, The New York Times, (May 17, 2021).
- Nina Totenberg, The Supreme Court Sets A Date For Arguments In Case That Could Challenge Roe V. Wade, NPR, (Sept. 20, 2021).
- Mary Ziegler, The Supreme Court just took a case that could kill Roe v. Wade--or let it die slowly, The Washington Post, (May 18, 2021).