Photo by Heather Mount on Unsplash
Rebekah Durham, Publications Editor, University of Cincinnati Law Review
I. Introduction
In the upcoming 2021 October Term, the Supreme Court of the United States will hear argument in Dobbs v. Jackson Women’s Health Organization, a case that has the potential to be one of the most significant abortion rulings of this generation.[1] The center of the dispute in Dobbs is a law passed by the state of Mississippi in 2018 that bans abortion after 15 weeks gestation, with a few limited exceptions.[2] The Mississippi law, titled the Gestational Age Act, conflicts with the current standard recognized by courts for state regulation of abortion. Since the 1992 Supreme Court decision of Planned Parenthood v. Casey, courts[3] have held it to be unconstitutional for a state to ban abortions before the point in a pregnancy where the child becomes “viable.”[4] As Mississippi’s 15-week ban appears to be a blatant violation of the viability standard, Dobbs presents a chance for the Court to wave a white flag over one of the most polarizing and contentious areas of constitutional law of the last century. This post will first give a brief background of abortion law in the U.S. and the facts of the Dobbs case, then discuss the issues presented in Dobbs and finally analyze potential outcomes.
II. Background
A. Abortion Law in the United States
Current abortion jurisprudence in the United States can best be described as fragmented and evolving. Abortion has been protected under the label of the constitutional right to privacy since Roe v. Wade[5]in 1973, but the details of what exactly that right entails have been in flux ever since. Roe set up a rigid trimester-based legal system under which states could regulate abortion to a greater degree with each trimester of a woman’s pregnancy.[6] In 1992, the Court’s decision in Planned Parenthood v. Casey scrapped the trimester framework while “reaffirming the central holding of Roe.”[7] The Court held in Casey that before a fetus reaches “viability,” states may not impose an “undue burden” on a woman seeking an abortion.[8]
In addition to replacing Roe’s trimester framework with the undue burden standard, Casey also marked a shift in the language used by the Court to discuss the abortion right. Roe had characterized it as a part of the “right to privacy,” which the Court described as one of those “personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’”[9] Casey, however, discussed abortion in the context of a woman’s liberty more than privacy.[10] It framed this “liberty” as necessary in light of the intrinsically more substantial impact that bearing children has on women as opposed to men.[11] Rather than labeling a specific individual right that was violated by state regulation of abortion, the plurality expounded that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[12] Justice Scalia, somewhat sardonically, would later term this the “famed sweet-mystery-of-life passage.”[13]
After Casey, a handful of significant abortion cases modified various elements of the jurisprudence. Gonzales v. Carhart, decided in 2007, held that the Partial-Birth Abortion Ban Act passed by Congress in 2003 was constitutional.[14] The fact that other safe medical options were available meant that “protecting innocent life from a brutal and inhumane procedure” did not impose an undue burden, and the Act was upheld.[15] Significantly, the Court was not swayed by the fact that the Act did prohibit certain abortion procedures pre-viability.[16] Next, in Whole Women’s Health v. Hellerstedt, the Court considered a challenge to a Texas abortion regulation requiring a doctor performing abortions to maintain admitting privileges[17] at a hospital within 30 miles.[18] The Court struck down the Texas law, and in doing so it applied the Casey standard in a slightly modified way. Instead of considering simply the burden on a woman seeking an abortion, the Court stated that the correct approach was to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.”[19] Most recently, in June Medical Services v. Russo, a Louisiana law almost identical to the statute at issue in Hellerstedt was struck down by a plurality of the Court.[20]
B. Facts of Dobbs
On March 19, 2018, Mississippi passed the Gestational Age Act (“GAA”).[21] The GAA instituted two requirements: first, that a physician must, in most cases, determine the probable gestational age of the fetus prior to performing an abortion, and second, it prohibited performing an abortion if the age of the fetus was found to be greater than 15 weeks.[22] The Jackson Women’s Health Organization is the only licensed abortion facility in Mississippi.[23] On the day that the GAA was enacted, Jackson Women’s Health filed a lawsuit against the state, alleging that the GAA was unconstitutional and requesting an injunction against Mississippi’s enforcement of it.[24] Jackson Women’s Health also requested that the court limit discovery in the case to whether 15 weeks was before or after viability, consistent with the Casey viability standard.[25]
The District Court granted the request to limit discovery, viewing all of the Mississippi legislature’s purported state interests as irrelevant, given that the law was a ban rather than a regulation: “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”[26] Then, concluding that 15 weeks was before viability, the Southern District of Mississippi said that other issues were immaterial and permanently enjoined the Gestational Age Act.[27] After the Fifth Circuit upheld the injunction, Mississippi petitioned the Supreme Court to consider the case, and on May 17, 2021, the Court granted certiorari on one issue: whether all pre-viability prohibitions on elective abortions are unconstitutional.[28]
III. Issues
In its petition for certiorari, Mississippi asked the Court to take up three issues.[29] The first issue, which the Court agreed to consider, was whether all pre-viability prohibitions on elective abortions are unconstitutional.[30] The second question presented asked whether pre-viability regulations should be analyzed under the Casey undue burden standard or the Hellerstedt burdens vs. benefits framework.[31] The third issue was whether abortion providers have third-party standing to challenge laws that protect women’s health.[32] These final two questions, which are more limited in their scope, were left on the table, suggesting that the Court may be ready to tackle the heart of the abortion controversy.
The Court’s choice of which case to hear is also notable. Dobbs was one of three major abortion-related cases with a petition for certiorari pending before the Supreme Court. Rutledge v. Little Rock Family Planning Services involves a challenge to an Arkansas abortion anti-discrimination statute—a law that bans abortions when the reason for the abortion is that the child has been diagnosed with Down Syndrome.[33] Also pending before the Court is Planned Parenthood of Indiana and Kentucky v. Box, a case that has been mired in the judicial system since 2017 and has already been to the Supreme Court once.[34] Box is a challenge to Indiana regulations governing if and when minors can get abortions without parental consent.[35] Either of these other two cases would have provided the Court with an opportunity to clarify key questions regarding the state’s ability to regulate abortion, but neither of them challenged the central holding of Roe in the way that Dobbs does.
IV. Outcomes
Because the case and the question presented in Dobbs cut straight to the heart of the standards established in Roe and Casey, the Court’s ultimate ruling will likely revisit the constitutionality of the viability standard. Although the case could possibly be decided for either party without revisiting that standard at all—Mississippi argued in the lower court that a 15-week ban did not amount to an undue burden because it merely limited the amount of time a woman had available prior to viability to choose an abortion[36]—the fact that the Court only granted certiorari on the single biggest issue suggests that the justices will be evaluating the heart of the abortion question.
A ruling on the constitutionality of the viability standard could take one of three paths. The Court could reaffirm Roe and Casey, even more deeply entrenching the right to abortion and the viability standard in American jurisprudence. This is the least likely option. If the justices intended to reaffirm the already existing standard, they would probably have agreed to consider the second and third questions presented, in order to add much-needed clarity to a confusing framework that has been questioned in three Supreme Court cases in the past five years.[37]
A second option would be for the Court to reaffirm Roe’s right to abortion, but set a new standard that depends less on the whims of medical technology[38] and provides more freedom for the states to pass laws aimed at maximizing the health and safety of both mother and child. Some have advocated for the detection of cardiac activity, or heartbeat, to mark the line before which abortion cannot be regulated.[39] If the Court chooses this route and creates a new standard, renewed doubt will be cast over the consistency of abortion precedent, and Roe will likely be on just as shaky ground as before.
The third route that the Court could take in deciding Dobbs is to overturn Roe and Casey altogether. Such a ruling could take on a variety of different forms, ranging from recognition of a constitutional right to life all the way to the Court’s removing itself from the abortion business and sending the issue entirely back to state legislatures. This option, although seemingly the most radical, could prove to be advantageous for the members of the Court with concerns of legitimacy, as it would extricate the Court from the position of defining what some view as a “court-created right.”[40]
Although overturning Roe may sound like a drastic step, sending abortion back to the states actually might not change as much as it would seem at first glance. Ten states currently have “trigger bans” in place—laws that would be put into effect to ban abortion in that state as soon as the Court overturns Roe.[41] However, five of those ten states have only one abortion clinic in the State.[42] If Roe were to be overturned, states where abortion is already highly regulated would be free to impose outright bans, and states that currently have very few limitations on abortion would be free to remain the same.
In addition to its implications for the legality of abortion in the U.S., a Dobbs ruling that overturns Roe and Casey, even partially, would have some side effects as well. One likely consequence is that the calls would become louder to change the structure of the Supreme Court, either through court-packing or through alterations to the appointment process and tenure of the justices. However, the concerns of those who fear the consequences of having a majority of conservative-leaning justices on the high court may be over-exaggerated. As the last term revealed, the six so-called “conservative” justices have not shifted the Court meaningfully to the right; in fact, the Court’s decisions in the 2020 term were overall significantly more aligned with the three Democratic-appointed justices than in the previous year.[43] Moreover, removing the Court from the abortion debate and sending the issue back to the states would be a quintessentially apolitical choice, one that says more about a restrained view of the Court’s role as judicial activist rather than an endorsement of any political position.
V. Conclusion
As Judge David F. Hamilton of the Seventh Circuit described, “constitutional standards for state regulations affecting a woman’s right to choose to terminate a pregnancy are not stable, but they have not been changed.”[44] From the right to privacy, to the due process liberty interest, to the undue burden standard, to the burdens vs. benefits test, pinning down the precise nature of the abortion right has been like trying to grab hold of a wet fish. Dobbs, however, presents a challenge to the very origins of abortion doctrine, and thus gives the Court a chance to bring clarity to a troubled area of law.
[1] Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019), cert. granted, 2021 U.S. LEXIS 2556 (U.S. May 17, 2021) (No. 19-1392).
[2] Dobbs, 945 F.3d at 269.
[3] See EMWomen’s Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418, 429 (6th Cir. 2020) (“The constitutionality of laws regulating abortion is governed by the ‘undue burden’ test set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey.”); Edwards v. Beck, 786 F.3d 1113 (8th Cir. 2015) (“a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” (quoting Planned Parenthood v. Casey, 505 U.S. 833, 879 (1992)).
[4] Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992) (“Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.”).
[5] Roe v. Wade, 410 U.S. 113 (1973).
[6] Id. at 164-65.
[7] Planned Parenthood v. Casey, 505 U.S. 833, 853 (1992).
[8] Id. at 876-79.
[9] Roe, 410 U.S. at 152.
[10] Casey, 505 U.S. at 896 (“It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother’s liberty than on the father’s. The effect of state regulation on a woman’s protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman.”).
[11] Id.
[12] Casey, 505 U.S. at 851.
[13] Lawrence v. Texas, 539 U.S. 558, 588, (2003) (Scalia, J., dissenting).
[14] Gonzales v. Carhart, 550 U.S. 124 (2007).
[15] Id. at 132.
[16] Id. at 156, 166-67.
[17] Admitting privileges are the rights that physicians have to admit patients to specific hospitals or for specific treatments. The specific requirements to obtain admitting privileges vary between hospitals. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F. Supp. 2d 891, 898 (W.D. Tex. 2013).
[18] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
[19] Id. at 2309.
[20] See June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (Court struck down a Louisiana admitting privileges requirement for physicians performing abortions because the “findings mirror those made in Whole Woman’s Health in every relevant respect and require the same result.” The plurality used the Hellerstedt “benefits against the burdens” framework for its analysis).
[21] Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 269 (5th Cir. 2019).
[22] Miss. Code Ann. § 41-41-191 (The act made an exception for abortion in cases of medical emergency or in the case of a severe fetal abnormality, when the child has a life-threatening medical condition such that it would not survive birth regardless of treatment).
[23] Dobbs, 945 F.3d at 269.
[24] Id.
[25] Id. at 269-70.
[26] Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 539 (S.D. Miss. 2018) (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 883, 860, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (plurality opinion)).
[27] Dobbs, 945 F.3d at 270.
[28] Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019), cert. granted, 2021 U.S. LEXIS 2556 (U.S. May 17, 2021) (No. 19-1392).
[29] Petition for Writ of Certiorari, Dobbs, 945 F.3d 265 (No. 19-__).
[30] Id.
[31] Id.
[32] Id.
[33] Little Rock Family Planning Servs. v. Rutledge, 984 F.3d 682 (8th Cir. 2021).
[34] See Box v. Planned Parenthood of Ind. & Ky., Inc., 141 S. Ct. 187 (2020).
[35] Planned Parenthood of Ind. & Ky., Inc. v. Box, 991 F.3d 740 (7th Cir. 2021).
[36] Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 270 (5th Cir. 2019) (“the State opposed summary judgment because the Act “merely limits the time frame” in which women must decide to have an abortion and because the Supreme Court has left unanswered whether Mississippi’s asserted state interests can justify the Act.”).
[37] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016); June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020).
[38] See Petition for Writ of Certiorari, Dobbs, 945 F.3d 265 (No. 19-__) (“medical advances make viability itself a moving target …Given the many medical advances our scientific community is constantly achieving, it is only a matter of time before development of an artificial womb moves ‘viability’ all the way back to the moment of conception.”).
[39] See Mary Ziegler, Abortion and the Law of Innocence, 21 U. Ill L. Rev. 865, 916-917 (2021). Ziegler discusses the work of Janet Folger Porter, who has advocated for the heartbeat standard to “replace viability, which she described as uncertain and fluid, with the ‘consistent and certain’ marker of a heartbeat.”
[40] Jones v. Mississippi, 141 S. Ct. 1307, n.9 (April 22, 2021) (Thomas, J., concurring).
[41] Abortion Policy in the Absence of Roe, Guttmacher Institute (June 17, 2021). https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe
[42] Holly Yan, These 6 States Have Only 1 Abortion Clinic Left. Missouri Could Become the First with Zero, CNN (June 21, 2019). https://www.cnn.com/2019/05/29/health/six-states-with-1-abortion-clinic-map-trnd/index.html
[43] See Adam Liptak, The Supreme Court’s Newest Justices Produce Some Unexpected Results, The New York Times (June 18, 2021). https://www.nytimes.com/2021/06/18/us/politics/supreme-court-conservatives-liberals.html
[44] Planned Parenthood of Ind. & Ky. v. Box, 991 F.3d 740, 741 (7th Cir. 2021).
