On Monday morning, the Supreme Court announced it would reconsider the constitutional ban against bans on abortion before fetal viability. This decision indicates that the ultra-conservative five-justice majority is willing to aggressively advance Roe against Wade instead of playing on the brink of abortion rights. The court will pass state laws that try to ban abortion in the early, and perhaps all, stages of pregnancy. It seems likely that the judges took this case for the express purpose of overthrowing Roe and allowing the government to enact draconian bans on abortion that have been unconstitutional for nearly half a century.
Dobbs v. Jackson Women’s Organization, the case that SCOTUS addressed Monday, is not a subtle threat to Roe. It is, rather, a direct challenge to decades of precedent in favor of election. In 2018, Mississippi passed a law banning abortions after 15 weeks. This measure had two objectives: to restrict abortion, yes, but also to answer the Supreme Court precedents that protected abortion rights. In Roe and later decisions — in particular, Planned Parenthood v. Casey, the Supreme Court ruled that the Constitution prohibits the prohibition of abortion before the fetus has reached viability. Since there is no doubt that at 15 weeks, a fetus is not viable, even with the most heroic medical interventions, the Mississippi Act was clearly designed as a vehicle to let SCOTUS revalue (and reverse) the roes.
The lower courts understood this plan. Judge James Ho, a very conservative candidate for Donald Trump, approved it almost when the case came before the 5th Circuit Court of Appeals of the United States. The Supreme Court urged him to dismiss Roe, though he acknowledged that, as a precedent-bound lower court judge, he could not uphold the Mississippi abortion ban. Now the judges have vindicated him by accepting Mississippi’s invitation. (The court will hear arguments about the case next fall and rule on the summer of 2022.) It’s not hard to guess what will happen next. But it’s worth pointing out three reasons why the Supreme Court seems willing to confiscate Dobbs to eviscerate the constitutional right to abortion.
First, there is no division among the lower courts on the issue raised in Dobbs. Typically, the Supreme Court addresses cases that have been divided by the courts of appeal so that judges can give a definitive answer that applies across the country. Here, however, no court has stated that, according to the current precedent, a state can ban abortions at 15 weeks. He even had to admit that a binding precedent “establishes viability as a constitutional norm that regulates.” There is no reason for the Supreme Court to hear Dobbs if he does not want to abolish this rule, which has been the law of the country for almost 50 years.
The Conservative majority is no longer interested in progressively eroding abortion rights.
Second, Mississippi gave judges several options for a more limited sentence; his petition to the court included a question that would have allowed the court to change the standard of abortion restrictions without openly killing Roe. But the judges rejected this alternative and agreed to consider the central issue of the case: “Whether all prohibitions on the pre-viability of elective abortions are unconstitutional.”
This action suggests that the Conservative majority is no longer interested in gradually eroding abortion rights until, in fact, they do not exist. This strategy has guided the anti-abortion movement for decades. It has led to laws forcing abortion clinics under a false pretext, forcing doctors to read anti-abortion propaganda, forcing women to undergo ultrasounds and waiting periods, and banning abortions for specific reasons, such as fetal disability. Following the confirmations of Judges Brett Kavanaugh and Amy Coney Barrett, conventional wisdom dictated that the Supreme Court would begin defending these laws, lifting Roe until it became an empty promise. But the new Conservative majority does not expect these average measures to reach the courts; with Dobbs, he has gone for the jugular. Roe is on the table.
Third, and related, the impact of Barrett in this case cannot be underestimated. Just last summer, the Supreme Court passed laws targeting Louisiana abortion clinics by a vote of 5 to 4, and Chief Justice John Roberts joined the Liberals (with qualifications) to affirm the rule. fundamental that states may not place an “undue burden” on the right to abortion before viability. Less than three months later, Judge Ruth Bader Ginsburg died and Trump put Barrett — an enemy of abortion rights — in his seat. In doing so, Trump opted for a far-right majority of five justices that, by all appearances, is committed to ending Roe.
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It seems the judges struggled with the decision to take Dobbs. The court has resided in the case since September 2020, when Ginsburg was still alive. He reprogrammed and re-listed Dobbs for more than eight months, almost unprecedented. This fall probably means a backstage battle, with liberal judges pressuring their Conservative colleagues (Kavanaugh and Barrett in particular) to stay out of the abortion debate for the good of the court. It takes four votes to grant a case, and obviously Roberts has little taste for abortion disputes. Therefore, we can deduce that Kavanaugh, Barrett, or both finally decided it was time to face Roe.
In doing so, the court withdrew. Although Mississippi law prohibits abortion after 15 weeks of pregnancy, the question presented is broader: one wonders whether all prohibitions on viability abortion are unconstitutional. In taking up this question, the court was given the power to issue a decision that goes far beyond the 15-week ban on Mississippi. If Conservative judges overturn precedents that prohibit the ban on viability, the abortion season will be open in red states across the country. Eight states have passed “heartbeat” laws banning abortion after six weeks, while three have enacted legislation banning abortion from the beginning of pregnancy. If SCOTUS authorizes pre-feasibility bans on Dobbs, they may open the floodgates, giving effective light to the most extreme laws of the process.
The constitutional right to terminate a pregnancy may now be under more serious and imminent threat than at any time since Roe stepped down in 1973.
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