The Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health Organization on December 1, 2021.[i] The case is set to limit and possibly overrule Roe v. Wade and the constitutional fallacy that a woman has a legal right to kill her unborn child.[ii]

 

Based upon a manufactured legal history of abortion, the Supreme Court first fabricated an abortion right in 1973 in Roe.[iii] After lower courts futilely grappled with this concocted right, the Supreme Court clarified in 1992 in Planned Parenthood of Southeastern Pennsylvania v. Casey that the right to a pre-viability abortion “is the most central principle of Roe v. Wade.”[iv] Accordingly, the Supreme Court crafted the “undue burden” standard to analyze the constitutionality of abortion regulations. The test is “a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,” the Court’s plurality said.[v] Yet in Justice Scalia’s prescient words, the undue burden standard is nothing more than a “verbal shell game [that] conceal[s] raw judicial policy choices concerning what is ‘appropriate’ abortion legislation.’”[vi] The standard is subjective and “‘hopelessly unworkable in practice,’” leaving the courts in disarray for the past thirty years.[vii]

 

Dobbs challenges the arbitrary viability line in Casey’s undue burden standard and the validity of Roe’s contrived abortion right. The case involves Mississippi’s Gestational Age Act, which limits abortions after fifteen weeks’ gestation to medical emergencies and cases of severe fetal disability.[viii] Under Casey’s undue burden standard, both the district court and Fifth Circuit Court of Appeals held the Act was unconstitutional, acting as a ban on a woman’s right to a pre-viability abortion.[ix] The Supreme Court now is deciding “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.”[x] Mississippi argues “[o]n a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight.”[xi] A state may regulate abortion if it satisfies a rational-basis review “[b]ecause nothing in constitutional text, structure, history, or tradition supports a right to abortion.”[xii]

 

Dobbs presented the most comprehensive oral argument the Supreme Court has heard on abortion. Stare decisis, the doctrine of upholding settled precedents, was a central theme of the debate. The Justices also delved into the undue burden standard’s viability line, women’s social reliance upon abortion, the distorted legal history of abortion, federalism, and the impact of safe haven laws.

 

Multiple Justices inquired if there is a feasible alternative litigation standard the Supreme Court could adopt other than Casey’s undue burden standard.[xiii] Many Justices critiqued the arbitrariness of the viability line of the undue burden standard.[xiv] Justice Thomas asked probing questions about where the purported abortion right appears in the Constitution and whether it makes a difference “that this is the only constitutional right that involves the taking of a life.”[xv] Justice Alito compared abortion social reliance in Roe to the “egregiously wrong” southern social reliance on “separate but equal” doctrine in Plessy v. Ferguson.[xvi]

 

On the pro-abortion end, Justices Breyer, Sotomayor, and Kagan expressed concern that overruling Roe may foster the “public perception that the Constitution and its reading are just political acts” and thus hurt the legitimacy of the Judiciary.[xvii] Justice Kagan expressed her view that for nearly fifty years, Roe and Casey have struck a balance between a woman’s interest in bodily autonomy and the state’s interest in protecting prenatal life.[xviii] Perhaps the most contentious question came from Justice Sotomayor, who queried, “How is [Mississippi’s] interest [in prenatal life] anything but a religious view?”[xix]

 

The Supreme Court likely will issue its Dobbs decision early this summer. The case has a variety of possible outcomes. The Court could reaffirm Casey and Roe in their entireties, but this seems unlikely. During oral argument, the Justices asked pointed questions about the arbitrariness of the viability line in Casey’s undue burden standard. The Court’s standards for reviewing abortion laws overall have been unsettled and unworkable in the courts.[xx] In the words of Mississippi Solicitor General Scott Stewart, “For 50 years, [Roe and Casey have] kept this Court at the center of a political battle that it can never resolve.”[xxi]

 

At the very least, the Supreme Court seems poised to discard the viability line in Casey’s undue burden standard. In this scenario, the undue burden standard would apply to all gestational ages, not just pre-viability pregnancies. States could regulate abortion at any pregnancy stage to further maternal health or prenatal life so long as the law is based on reasonable grounds and does not pose an undue burden to women seeking abortion.

 

Another possible outcome is that the Court may overrule Casey and Roe altogether. In this outcome, states could regulate abortion under the rational basis test, which upholds statutes that have a legitimate state interest that is rationally connected to the statute’s goals. It has been said that the Constitution is “scrupulously neutral” on the abortion issue.[xxii] If the Supreme Court overrules Roe and Casey, the probable outcome is that there would be no federal constitutional prohibition on abortion; the issue would return to the states and the democratic process.

 

Dobbs has presented the Supreme Court the opportunity to rectify what several Justices have called the “abortion distortion” of Roe and Casey. For almost fifty years, abortion jurisprudence has proved unworkable. As Mississippi argues, the cases “have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise.”[xxiii] Limiting or overruling Roe and Casey will return the abortion issue to the democratic process and take us one step closer to a world in which all humans are welcomed in life and protected in law.

 

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[i] No. 19-1392 (Dec. 1, 2021).

[ii] 410 U.S. 113, 153 (1973).

[iii] See Joseph W. Dellapenna, Dispelling the Myths of Abortion History (2006).

[iv] 505 U.S. 833, 871 (1992).

[v] Id. at 877.

[vi] Id. at 987 (Scalia, J., dissenting in part).

[vii] Stenberg v. Carhart, 530 U.S. 914, 955 (2000) (Scalia, J., dissenting) (citing Casey, 505 U.S. at 986 (Scalia, J., dissenting in part)).

[viii] Miss. Code § 41-41-191(4) (2018).

[ix] Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 545 (S.D. Miss. 2018); Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 274 (5th Cir. 2019).

[x] Petition for a Writ of Certiorari at, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (June 15, 2020).

[xi] Brief for Petitioners at 1, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (July 22, 2021). 

[xii] Id.

[xiii] Transcript of Oral Argument at 7–8, 41, 53–54, 104, Dobbs v. Jackson Women’s Health Org., No. 19-1392 (Dec. 1, 2021).

[xiv] See, e.g., id. at 81–82.

[xv] Id. at 7, 49, 85–86.

[xvi] Id. at 94 (referencing Plessy v. Ferguson, 163 U.S. 537 (1896)).

[xvii] Id. at 10–11, 15, 33.

[xviii] Id. at 33–34.

[xix] Id. at 29.

[xx] Clarke D. Forsythe & Rachel N. Morrison, Stare Decisis, Workability, and Roe v. Wade: An Introduction, 18 Ave Maria L. Rev. 48, 49–50 (2020).

[xxi] Transcript of Oral Argument, supra note 13, at 4.

[xxii] Id. at 77, 112.

[xxiii] Id. at 4.