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The Supreme Court Takes Up Abortion Rights Once Again

By: Nick Bonds, Esq.

The current lineup on the Supreme Court’s bench leaves it with a six-justice conservative majority, meaning the cases it takes up will almost certainly move American jurisprudence decidedly to the right. This shift is visible in not merely the opinions this majority writes, but also in the types of cases the Court decides to hear. It only takes four justices to agree to hear a case, and conservative legal activists sense an opportunity to push the envelope in their favor. The Court has now agreed to hear in their next term two cases emblematic of this shift: New York Rifle & Pistol Association, Inc. v. Corlett, a major gun-rights case, and Dobbs v. Jackson Women’s Health Organization, debating a Mississippi law crafted specifically to challenge Roe v. Wade.

Roe v. Wade
has become the byword for abortion rights in the United States, and their stance on Roe has become a political shibboleth for judicial nominees. In the confirmation process for the latest crop of conservative justices, all faced speculation (and direct questions) about their position on Roe and whether they would vote to overturn it. In nominating Justices Gorsuch, Kavanaugh, and Barrett, President Trump explicitly stated he was looking for individuals who would make it possible to overturn Roe.

Though Roe has certainly become the cultural cachet, the current test by which abortion laws are judged comes from a more recent blockbuster: 1992’s Planned Parenthood v. Casey. Though Roe gets all the attention, Casey has in many ways superseded it, and does give states the right to regulate abortion after fetal viability – that is, the point at which a fetus can survive outside the womb, generally after around 24 weeks of gestation. It is the Casey opinion that reaffirmed the fundamental holding of Roe, recognizing “the right of the women to choose to have an abortion before viability and to obtain it without undue interference from the state,” – the “undue burden” standard courts apply to this day.

Similar to Casey, the Dobbs case is specifically inviting the Supreme Court to once again weigh in on the decision in Roe and to decide the constitutionality of abortion rights. The Mississippi law at the heart of Dobbs would ban most abortions after 15 weeks of pregnancy, well earlier than would be permitted under Roe or Casey. In accepting to hear the Dobbs case, the Supreme Court said it would examine whether “all pre-viability prohibitions on elective abortions are unconstitutional,” meaning this case could come to represent a sea change in the abortion laws of this country.

Even if the Court chooses not to use Dobbs to fully overturn previous abortion decisions, they could still fundamentally alter how abortion laws are reviewed by throwing out the viability standard of Roe or the undue burden standard of Casey. A decision in Dobbs will not come quickly, however; the Court likes to wait to announce its opinions on such high-profile cases until the last possible moment. Meaning that we likely won’t have a decision to parse until next June.

In the meantime, the Mississippi law has been blocked from taking effect by the Fifth Circuit Court of Appeals, citing the law’s incongruity with Supreme Court precedent. Not to be outdone, Texas, another state in the Fifth Circuit, recently passed an even more restrictive anti-abortion bill that would prohibit the procedure as soon as a fetal heartbeat can be detected. Fetal cardiac activity can be picked up by a transvaginal ultrasound as early as six weeks into gestation, potentially before a person even realizes they are pregnant, and the bill is seen by critics as a de facto ban on all abortions. Similar “heartbeat” bills have been passed by a number of other states, including Mississippi, and many similar laws could be enacted by states in the wake of the Supreme Court’s decision in Dobbs. A number of states even have “trigger laws” on the books, antiabortion laws that do not become enforceable until Roe is overturned.


No matter how the Supreme Court rules on Dobbs, it appears likely that this more conservative crop of Supremes is open to entertaining challenges to precedent, and their decisions could make significant waves in the very near future.