The Supreme Court will hear oral arguments in Dobbs v. Jackson Women’s Health Organization Wednesday.
The arguments concern a law in Mississippi that would ban most abortions after 15 weeks of pregnancy. That law violates Roe v. Wade. The Fifth Circuit Court of Appeals, perhaps one of the most conservative appeals courts in the country, effectively said just that by upholding an injunction preventing the law from taking effect. A challenge to the Fifth Circuit's decision brought the case to the highest court in the land.
Roe v. Wade was established on Jan. 22, 1973. It guarantees a woman’s right to obtain a medically safe and legal abortion nationwide. It uses the trimester approach.
SUPREME COURT TO HEAR MISSISSIPPI ABORTION CASE THAT COULD OVERTURN ROE V. WADE: LIVE UPDATES
For the first trimester of pregnancy, the court left the decision up to a woman and her doctor. For the second, a state could regulate the procedure in ways related to the woman’s health. Only in the third trimester could states ban an abortion, the court said, promoting a legitimate interest in potential life except when the woman’s life or health is at risk.
ABORTION IS A FUNDAMENTAL RIGHT. WE SHOULD ALL BE CONCERNED ABOUT WHAT RESTRICTING IT WILL MEAN
Now many on my side of the aisle (that’s left for those without a compass), are biting their nails because they believe Dobbs could result in the Supreme Court overturning Roe v. Wade. Especially with the court’s recent ruling (or lack thereof) on the Texas law banning most abortions after six weeks of pregnancy.
I take issue with these concerns. Don’t get me wrong, the Supreme Court could overturn Roe, but let’s also consider three other possibilities:
We’ve Been Here Before
March 2020 saw the last challenge before the Supreme Court to attempt to overturn Roe v. Wade. Everyone was convinced this was it. But then Chief Justice John Roberts sided with liberals on the court. Who argued that case before the Supreme Court? Julie Rikelman. Who is arguing on behalf of Jackson Women’s Health Organization? Julie Rikelman.
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Composition of the Court
Some will argue that the makeup of the court was different in March 2020 than it is today. We had Justice Ruth Bader Ginsburg on the bench. True, but when I said we’ve been here before, I didn’t just mean 2020. I also meant 1992, when Planned Parenthood v. Casey was decided. The court was conservative when that decision came down and Roe is still the law of the land in 2021.
In addition Roberts and Justices Neil Gorsuch and Brett Kavanaugh have all spoken about maintaining precedent, Roe included. We will have to see if they were lying. We know Justice Clarence Thomas doesn’t believe the Constitution protects a woman’s right to choose so all eyes will be on Justice Amy Coney Barrett. Will she really put her personal feelings aside in her decision-making as she indicated she would do before being sworn in on the court? We will soon see.
It’s Not Just A Yes or No Decision
In Casey, Justice Sandra Day O'Connor, Anthony Kennedy and David Souter replaced Roe’s "rigid" standard with an "undue burden" test, allowing more restrictions on abortion. But they also preserved Roe’s "central holding," which said that no state can impose an outright ban before viability, which is about 24 weeks. In other words, the justices could tweak Roe (as the court did in 1992) without completely butchering or dismantling it.
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The bottom line for me as a pro-choice woman is that the ultimate decision in this case not prevent a woman from obtaining an abortion. If red states get their way and ban abortion, it will only result in more illness and death. Women in those states will still try to get abortions, just not medically safe ones. And, of course, many will travel to blue states to obtain an abortion.
If being pro-life means not wanting a fetus to be aborted because you believe it’s a life, then neither the Texas nor the Mississippi laws do that. The only way to stop abortion is to prevent a pregnancy; but pro-lifers have also pushed back on the best way to do that – sex education and birth control. So maybe it’s not about saving the life of a fetus after all, but winning the political game of abortion.
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