The Supreme Court announced yesterday that it will decide Dobbs v. Jackson Women’s Health Organization. Dobbs is a Mississippi abortion case that pro-lifers have long hoped—and pro-choicers long feared—that the Court would accept for review. They have held their breaths for an exceptionally long time. The petition for review was filed last June.
Dobbs will be argued sometime after the court’s new term begins on October 4. The decision may come as late as the end of June 2022. Between now and then, myriad friend-of-the-court briefs will be filed. Countless commentators will publish op-eds predicting doomsday scenarios for women's access to abortion. The Biden Administration will file a brief. Dobbs is going to be the most anticipated Supreme Court abortion decision since 1992, when Planned Parenthood v. Casey reaffirmed Roe v. Wade. And rightly so.
In Dobbs, the Fifth Circuit Court of Appeals struck down a Mississippi law that prohibited abortion, with few exceptions, after fifteen weeks' gestation. On June 15, 2020, Mississippi filed for review by the Supreme Court. All that we know right now about the justices’ intentions is contained in the Supreme Court’s one-sentence order, published this morning: “The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.” The “petition” was Mississippi’s. “Question 1” is this: “Whether all previability prohibitions on elective abortion are unconstitutional.”
The law currently holds that “viability” occurs about twenty-two weeks into pregnancy. Mississippi is one of several states that have enacted prohibitions on previability abortions in the last few years, expecting lower courts to invalidate them but hoping to breach the “viability” barrier at the Supreme Court. Mississippi defends its law prohibiting “elective” abortions after fifteen weeks mainly because the fetus is by then “likely capable of conscious pain perception.” Other states have prohibited abortion even earlier—some at eight weeks, about the time the fetal heartbeat can be detected.
In this case, “elective” abortions exclude those sought because of “medical emergencies” pertaining to the mother or because of “severe fetal abnormalities.” These elective abortions are not at issue in Dobbs. Rather, the prohibitory remainder is: all other “elective” abortions sought when the fetus is between fifteen weeks' gestational age and the existing legal point of “viability.”
The “viability” precedent (Roe, rearticulated in Casey) caused the lower courts to block enforcement of Mississippi’s law. The judges of the Fifth Circuit concluded that Supreme Court precedent categorically excluded any such “previability” bans. They were right about the court’s precedents. But those precedents have been wrong.
Indeed, almost forty years ago Justice Sandra Day O’Connor made much the same argument that Mississippi is making now. O’Connor wrote in the 1983 Akron case that “viability” is a wavering, contingent line: “As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.” This wobbly line is also an arbitrary divide, O’Connor wrote, because it has no relation to the relevant state interest: “potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. At any stage in pregnancy, there is the potential for human life. . . . The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward.” O’Connor nonetheless voted in Casey to affirm the central holding of Roe. Go figure.
Mississippi corrected O’Connor’s criticism of “viability” in one crucial respect. Although its petition recited O’Connor’s words faithfully, the state erased the concept of “potential” life. Mississippi has consistently maintained that a real (not “potential”) human individual comes into being at conception. This fact is strategically woven into its argument about the state’s asserted “interest, from the outset of pregnancy in protecting the life of the fetus that may become a child.” Of course, that a fetus “may become a child” does not imply or entail that the fetus is not already a human person, albeit at an early stage of development. “Potential” has no more to do with it than does the fact that a child is “potentially” an adult. The state also asserted an interest against inflicting “inhumane” pain upon the fetus. But felt pain is not a criterion of human life; otherwise, anesthetized people would be dead. The capacity to feel pain is a criterion of all sentient life, not just human life. So the force of this argument depends upon the adjective “inhumane”; that is, hurting an actual (not “potential”) human individual.
Mississippi’s lawyers boldly stated in its petition that the questions presented in Dobbs “do not require the Court to overturn Roe or Casey.” They also wrote that “if the Court determines that Roe and Planned Parenthood v. Casey cannot be reconciled with other precedents and the scientific facts of the matter, then Roe and Casey should indeed be overruled.”
So what can we reasonably expect from Dobbs when it is decided next year? The Court could possibly answer Question 1—whether all previability bans are unconstitutional—in the affirmative, but only if it rolls back that dividing “viability” line to something like fifteen weeks. This result is unlikely. For the main arguments offered by Mississippi against “viability”—that it ties the law to variable medical technology and that it has no relation to the state’s interest in protecting fetuses—work as well against a fifteen-week “viability” line as they do against one set at twenty-two weeks. For that matter, they work pretty well against any principled stopping point between conception and birth.
The court will struggle, and perhaps mightily, to write an opinion that discards “viability” without overturning Roe. The pro-life justices will be unsatisfied with throwing up any facile or arbitrary line, though, in pursuit of a moderate result that somehow divides elective abortions into coherent categories of those which are constitutionally immune to state bans and those which are not, distinguished by some relevant principle and not by judicial fiat. Perhaps that opinion simply cannot be written. We should pray for that event, for it would augur, as Mississippi suggested, that “Roe and Casey should indeed be overruled.”
Gerard V. Bradley is professor of law at the University of Notre Dame and trustee of the James Wilson Institute.
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