Opinion: This could be the case that takes down Roe v. Wade
In agreeing to hear Dobbs v. Jackson Women's Health Organization, the Supreme Court (and its new conservative supermajority) are gearing up to take a direct hit on the question of abortion and the future of Roe v. Wade, says law professor Mary Ziegler.Just a week ago, it seemed hard to imagine that the Supreme Court, with its conservative supermajority, was ready for a direct attack on Roe v. Wade. After all, the justices had been considering a Mississippi abortion case since September without saying a word.
The Supreme Court's decision to hear a case challenging Mississippi's 15-week abortion ban could upend the historic decision of Roe v. Wade, experts have told Newsweek. © Alex Wong/Getty Images A pro-life activist holds a sign outside the U.S. Supreme Court during the 48th annual March for Life January 29, 2021 in Washington, DC. The court is set to hear a potential landmark case on abortion rights.
In Dobbs v. Jackson Women's Health Organization, the court will consider a 2018 Mississippi law that forbids abortions after 15 weeks on the grounds that a fetus at that stage is viable outside the womb. Jackson Women's Health Organization successfully argued to the 5th U.S. Circuit Court of Appeals that a fetus is not viable at 15 weeks and the court blocked the law.
Brett Kavanaugh’s latest decision should alarm liberals
The Court’s new median justice really doesn’t care about precedent.The first was the Court’s announcement that it will hear Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law banning nearly all abortions after 15 weeks of pregnancy. Dobbs is potentially an existential threat to the constitutional right to an abortion, and it tees up the question of whether this Court is willing to overrule venerable decisions like Roe v. Wade, which are beloved by liberals and loathed by conservatives.
The Supreme Court will now decide whether "all pre-viability prohibitions on elective abortions are unconstitutional." If the court upholds the law, it could open the door for other states to introduce strict restrictions on abortion.
The court now has a 6-3 conservative majority but particular attention is focused on the three justices appointed by former President Donald Trump—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Experts on the Supreme Court and abortion rights told Newsweek Trump's appointees could pave the way for unpicking Roe v. Wade.
Roe v. Wade was a landmark 1973 decision that established a right to abortion in the U.S., though states retain the power to regulate abortion in the second trimester within certain limits and to ban abortion in the third trimester with an exception for a medically certified threat to the life or health of the pregnant woman.
This Case Will Mark the Beginning of the End for Roe v. Wade
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.
Overturning the provisions of Roe would not make abortion illegal but it would allow states to pass more restrictive regulations.
"The Supreme Court's grant of cert in Dobbs v. Jackson Women's Health Organization likely signals the Court's willingness to roll back legal protection for providing or accessing abortion care," said Jessica Waters, professor at the Department of Justice, Law & Criminology at the American University in Washington, D.C.
"In 2020, the Court narrowly struck down Louisiana abortion restrictions (June Medical Services) in a 5-4 decision. In that 2020 case, Justice [Ruth Bader] Ginsburg provided that critical fifth vote to strike down the restrictions. President Trump's most recent appointees at the time—Justices Kavanaugh and Gorsuch—voted with Justices [Clarence] Thomas and [Samuel] Alito to uphold the abortion restrictions, so they have already signaled their willingness to roll back or even overturn Roe and Wade.
What banning abortion at 6 weeks really means
So-called heartbeat bills ban nearly all abortions.The law contains an exception for medical emergencies, but no exceptions for cases of rape or incest.
"Justice Ginsburg has now been replaced by Amy Coney Barrett; Justice Coney Barrett will likely join the conservative block in being willing to dismantle Roe - thus providing the fifth vote to do so."
Mary Ziegler is a professor at Florida State University's College of Law and author of Abortion and the Law in America: Roe v. Wade to the Present. She told Newsweek Trump's appointees make it more likely the Court will overrule Roe.
"Since joining the Court, Gorsuch dissented from a major decision striking down a Louisiana abortion restriction," Ziegler said. "In a separate opinion of his own, Gorsuch wrote that the Court had 'lost [its] way' when it came to abortion—signaling that it was time to rethink abortion jurisprudence."
"We know less about Brett Kavanaugh and Amy Coney Barrett because they have been more cagey (or in Barrett's case, have not yet written a full opinion on abortion)," she said.
However, Ziegler said that Kavanaugh "seems ready to roll back abortion rights—and far more than his predecessor [former Justice Anthony Kennedy]," while Barrett's place on the court could mean that Chief Justice John Roberts' vote "will not be enough to save abortion rights" as it had previously been in the Louisiana decision.
How Biden and the Democrats can save abortion access before the Supreme Court overturns Roe v. Wade
Passing the Women's Health Protection Act would prevent states from banning abortion Nancy Pelosi, Joe Biden and Chuck Schumer Photo illustration by Salon/Getty Images
"Yesterday's decision to take the Dobbs case certainly reinforces the idea that Trump's nominees will upend the law on abortion and move us closer to a day when Roe is no longer the law," Ziegler said.
Paul Collins is professor of legal studies and political science at the University of Massachusetts, Amherst. He said Trump's appointees "seem comfortable with overruling precedents they feel were wrongly decided" and this could include Roe. However, he believes the Court could limit itself when it comes to a ruling.
"Look for Chief Justice Roberts to push the Court's conservative members to rule narrowly on the case to avoid controversy," Collins told Newsweek.
"One way for the justices to do this is to hold that Jackson Women's Health Organization does not have standing to challenge the Mississippi law. Although this would be disappointing to those hoping the Court will overrule Roe v. Wade, such a decision would nonetheless be a victory for opponents of reproductive freedom."
Gregory Caldeira is professor of law at the Ohio State University and specializes in the Supreme Court. He shares the view that the court could rule narrowly.
"With the departure of Kennedy and then Ginsburg, replaced by Kavanaugh and Barrett, it is difficult to imagine that the Court won't make substantial cuts in abortion rights," Caldeira said.
Mississippi's last abortion clinic at center of US debate
JACKSON, Miss. (AP) — The bright pink building in an eclectic neighborhood of Mississippi's capital goes by different names. To the anti-abortion protesters whose demonstrations have sparked a noise ordinance, it is an “abortion mill.” To those who work and volunteer there, the facility known as the “pink house” provides the last safe haven in Mississippi for women who choose to have an abortion. Now, the only abortion clinic in Mississippi is facing what could be its biggest challenge. The U.S.
"This reconstituted court could make a limited decision, but there is every reason to imagine that it will uphold Mississippi's law," he added.
"Numbers and dates tell an important part of the story," said Stephen Wermiel, professor of practice of constitutional law at American University Washington College of Law.
"The Mississippi law was enacted on March 19, 2018. Had the U.S. Supreme Court considered the law that very same day, it would have been ruled unconstitutional by a 5-4 vote with Justice Anthony Kennedy joining liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
"Fast forward. Justices Brett Kavanaugh and Amy Coney Barrett have replaced Kennedy and Ginsburg. The questions now are whether the Court will uphold the law by a 6-3 vote or will any conservatives reject the Mississippi restrictions, and how will the Court redefine abortion rights, not whether the Court will do so," Wermiel said.
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Supreme Court: Five things to watch in final weeks of high court's term .
From a major health care case to the potential retirement of Justice Breyer, there's a lot to watch in the final month of the Supreme Court's term.From health care to voting to a dispute pitting LGBTQ rights against religious freedom, the nation's highest court will soon start churning through blockbuster cases, dropping decisions that will reshape the law – and the political landscape.