Over the strong opposition of pro-choice groups, the Supreme Court just granted cert in Dobbs vs. Jackson Women’s Health Organization, 19-1392. The case could prove a turning point for the Court on reproductive rights. The Mississippi law at issue banned abortions after 15 weeks — seven weeks earlier than past laws passing constitutional muster. State legislators have been passing laws like live torpedos on the water and this one just hit with a 6-3 conservative court.
The decision comes a year after pro-choice groups were able to secure a plurality decision in June Medical Services v. Russo (2020). That victory was attained only because Ruth Bader Ginsburg was still on the Court and Chief Justice John Roberts wrote a concurrence in the result. However, the Roberts concurrence was also concerning for pro-choice advocates. He only voted with his liberal colleagues because he felt bound by stare decisis to follow the 2016 decision in Whole Woman’s Health v. Hellerstedt that addressed a virtually identical law. He felt that the record did not allow him the flexibility found by his four conservative colleagues in voting in favor of the state law.
The concern for pro-choice groups is that Roberts noted in this concurrence that “no one asked the Court to reassess the Constitutional validity of the undue burden standard.” This case could afford such a review. The law was blocked by the United States Court of Appeals for the Fifth Circuit.
Obviously, all eyes will be on Justice Amy Coney Barrett who, as an academic, wrote extensively on what she saw as flaws in the Roe progeny. As I wrote at the time, Barrett was the ultimate deliverable for the pro-life movement by former President Donald Trump. In her confirmation, Judge Barrett had an interesting exchange with Sen. Amy Klobuchar, D-Minn. in which she identified Brown v. Board of Education as such super precedent. However, when pushed on Roe, she noted “I’m answering a lot of questions about Roe which I think indicates that Roe doesn’t fall into that category.” That led to an audible gulp from pro-choice groups.
What is also notable is that this case will be heard in October and could be decided by June 2022. Any major change in the abortion standards would then occur before the 2022 election for the control of Congress. It could also rekindle demands on the left to pack the Supreme Court.