It’s the perfect case to take away abortion rights—and the Supreme Court will hear it in October.
Arising out of a Mississippi law designed specifically to challenge Roe v. Wade, the case, Dobbs v. Jackson Women’s Health Organization, is perfect because it gives the Court’s conservative supermajority a way to eviscerate abortion rights while still, if it wants to, sort of somehow upholding Roe as a precedent—as all the justices swore they would do during their confirmation hearings.
That’s because the law doesn’t ban all abortions outright: It just moves the goalposts. Under Roe, women have the right to control their bodies up until fetal viability, roughly week 24 of pregnancy. The Mississippi law slides that to 15.
What’s magical about 15? Nothing, really. It’s just lower than 24 and higher than 0. But that way, the Supreme Court can uphold the law, severely limit abortion rights, but still maintain the core holding of Roe, which is that the Constitution gives women the right to control their own bodies, up to a certain point anyway.
But the Court’s 6-3 conservative majority may not even want to do that. True, Justices Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch all swore to respect Roe as precedent according to the doctrine of stare decisis (“let the decision stand”). But stare decisis isn’t unlimited, and there are well-established guidelines for when the Court can overturn its own precedent.
Moreover, in an unrelated case decided two years ago, Justice Clarence Thomas invented new, looser rules for stare decisis that would make overturning Roe even easier. According to Thomas, stare decisis is “at its weakest when we interpret the Constitution” (as in Roe) and depends upon “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.”
Those are all Thomas’ doctrinal innovations, and they seem custom-tailored to overturn Roe entirely. If he doesn’t try to do so in his Dobbs opinion, I’d be shocked.
The Court will also likely define away the 1992 precedent, Planned Parenthood v. Casey, which ruled that any restriction on abortion that placed an “undue burden” on women was unconstitutional. Already, the flabbiness of that standard has led to divergent results. (How much of a burden is undue? What is a “due” burden anyway?) Most likely, a majority of this Court’s justices will either junk Casey or redefine it in a way as to be functionally meaningless.
Based on past opinions and writings by the sitting nine justices, there will only be three—or maybe four, counting Chief Justice John Roberts—votes for leaving Roe and Casey as they are today. Roberts might also hold that the 15-week limit is not an “undue burden,” thus diluting Casey but preserving Roe, but it’s not clear if anyone else would vote for that.
Most likely, then, the real debate in Dobbs will be between overruling Roe entirely (Thomas), cutting the time limit back from 24 to 15 weeks (maybe Roberts), or replacing the “undue burden” standard with something that lets states control women’s bodies more. And the “swing” votes, if we can call them that, are Justices Alito, Gorsuch, Kavanaugh, and Barrett.
It is, of course, a bitter moment for people who think that, in our constitutional democracy, women should be able to control their own bodies.
First, the decision will be made by the three justices put in place by a twice-impeached president-insurrectionist, advised by a religious extremist and abetted by the debasement of the United States Senate. These three justices were trained, vetted and put into place for just this moment, like some Christian Captain America.
Second, one of those justices is sitting in a seat stolen from now-attorney-general Merrick Garland; another has still-unresolved rape allegations against him, with further evidence that emerged after his confirmation; and a third was shoved into a seat still warm from the justice who used to occupy it. It’s appalling.
Third, we’ve seen over the last year that the “pro-life” position is a farce. A majority of Americans who believe it is perfectly fine for the state to control a woman’s body when it contains a pea-sized blastocyst inside of it, also believe it is oppressive and un-American for the state to require people to wear a mask or get a vaccine to prevent a highly contagious and lethal disease.
Sure, women can be forced to be pregnant. But wearing a mask to avoid killing a stranger on the street? Tyranny!
Speaking of tyranny, there’s no doubt that the Christian Right is going to win this round. Roe as we know it will soon be history, even if Roe itself stays on the books.
But Roe will not be the end of this story. As red states’ legislatures outlaw abortion in their 2022 sessions, the “blue” people living within them will respond in the 2022 election. Indeed, they will be galvanized, as we saw in Georgia last year. And no matter how many blue, Black or brown votes these Republican-controlled state legislatures suppress, this anti-woman, anti-humanist, anti-life revolution will backfire.
This year’s abortion revolution will become next year’s albatross around the GOP’s neck.
