The right to an abortion has been a hotly contested issue in the United States for decades, and Dobbs v. Jackson is next in line to secure or deny abortion rights for women throughout the nation. This controversy has been the subject of many protests and rallies, creating intense animosity between those who consider themselves “pro-life” and “pro-choice.” Those who have been nominated to the Supreme Court are almost always asked their opinions on Roe v. Wade, the landmark decision which held that a woman’s right to an abortion is protected by the United States Constitution.
In Roe v. Wade (1973), the Court ruled that the Due Process Clause of the Fourteenth Amendment provides a “right to privacy” that guarantees a woman’s right to choose whether an abortion is the correct decision for her. The Court also determined the period of viability, also known as the earliest state of infant maturity, to be 24 weeks. In 1992, in the case of Planned Parenthood v. Casey, the Court upheld the Roe decision and applied the undue burden standard for abortion restrictions. The undue burden standard states that a state legislature does not have the ability to pass a law that would be too restrictive of one’s rights or cause a great burden to an individual.
Facts of the case:
On March 19, 2018, Jackson Women’s Health Organization, the only licensed abortion facility in Mississipi, challenged Mississippi’s “Gestational Age Act,” which banned all abortions after 15 weeks since the first day of the last menstrual period. The exceptions to this act include medical emergencies and cases of severe fetal abnormality, leaving out pregnancies from rape or incest. Later that year, the U.S. District Court for the Southern District of Mississippi and the Fifth Circuit Court of Appeals both held that the Mississippi law is unconstitutional.
The U.S. District Court for the Southern District of Mississippi ruled that abortions are not allowed to be banned before a fetus becomes viable, occurring at the 24 week mark, as the Supreme Court decided in Roe v. Wade. The Fifth Circuit Court of Appeals affirmed another section of Roe, which provided that the State is unable to impose a “substantial obstacle” to a woman’s right to an abortion before the period of viability. In this case, 15 weeks is before viability, and the law presents a “substantial obstacle,” making this law unconstitutional. Thomas Dobbs, the State Health Officer of Mississippi, challenged the decision of the two lower courts, and the Supreme Court agreed to hear this case in a hearing on Dec. 1, 2021. This case fundamentally challenges the precedents set by the landmark cases Roe v. Wade and Planned Parenthood v. Casey.
The state of Mississippi contends that the Constitution does not directly mention abortion, which would give the State the right to regulate abortions before the viability period. This argument has been challenged before, as many fundamental rights that are not directly mentioned in the constitution have been recognized by the Supreme Court under the Fourteenth Amendment. For example, the right to privacy is not in the original text of the Constitution, but the Court has recognized it on several occasions on the basis of a state being prohibited from depriving a person of “life, liberty, or property.”
Last year, in June Medical Services LLC v. Russo, the Court reversed the decision of the Fifth Circuit which upheld the Louisiana law requiring abortion providers to hold admitting privileges at a nearby hospital. It was a 5-4 decision: Justice Stephen Breyer authored the plurality opinion representing himself, Justice Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Now, with Justice Amy Coney Barrett on the bench, who has spoken out against the Roe v. Wade decision, the fate of abortion in the United States is unclear.
The question the Court has said it will examine is: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
There are three possible decisions which the Supreme Court might arrive at in this case. The first would be that the Court overturns Roe v. Wade and allows states to ban abortion before the viability period. Alternatively, the Supreme Court could decide to uphold Roe v. Wade and prohibit states from banning abortion before the viability period. In the middle ground of these two extremes exists the possibility that states could ban abortions before viability when the ban does not burden a substantial number of people, citing the undue burden standard.
Without Roe and Casey, many women fear that their reproductive rights will be eliminated. The fear that women are losing their rights to autonomy over their own bodies is becoming more prevalent as states may be able to determine what they can and cannot do with their bodies. The number of abortion clinics in many states is declining as this issue becomes more controversial and pressing. It is not simply a misfortune that there is only one abortion clinic left in Mississippi but a foreshadowing of what is to come for women in the near future if Roe is overturned.
The state legislature of Texas has recently approved a “trigger law,” which would go into effect immediately if Roe was overturned. This law would almost entirely ban abortion in the state. States like Missouri, Tennessee, and Utah have similar trigger laws in place. Eleven states have proposed heartbeat bills, which state that as soon as a fetal heartbeat is detected, an abortion is deemed illegal. Therefore, access to legal abortions would effectively be terminated for millions of American women. This prohibition would increase the inequality gap, as those who were able to travel great distances to receive an abortion would still be able to get one, and those who could not might resort to unsafe measures.
Dylan Tuchman is from Westchester, NY, studying History.