(NOTE TO READERS: This is the final of three articles about the Mississippi abortion case set for a hearing in the Supreme Court on December 1. This discussion is about the details of that case – the issues and how they developed. In the prior two articles, the focus was first on the process of overruling constitutional decisions and then on the background of the constitutional “right of privacy” as the basis for a right to abortion.)
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From the time the Supreme Court decided Roe v. Wade more than 48 years ago, opponents of abortion have devised a multitude of ways to try to undo that ruling, in whole or in part. The one barrier, insurmountable so far, was that the Court has never questioned what has turned out to be a seemingly fixed constitutional rule that states may not violate.
The rule: no ban on abortion can withstand a constitutional challenge if it prohibited the procedure before the fetus had reached the stage where it could survive if delivered. Medical science has long put that point (“viability”) at 24 weeks of pregnancy, although there appears to be some evidence of potential survivability at 22 weeks.
Most foes of abortion would ban the procedure throughout pregnancy, on the theory that human life begins at the moment a pregnancy is conceived. If that is not achievable, they work steadily to achieve bans as early as possible in pregnancy.
While the Court has always been open to allowing some government regulation of abortion, it made this flat statement in 1992: “Before viability, the state’s interests are not strong enough to support a prohibition of abortion.” That came in a ruling that is as important as Roe v. Wade itself, in the case of Planned Parenthood v. Casey.
Why is that rule so fundamental? Not many abortions are performed as late as 24 weeks in the 40-week pregnancy cycle (except in medical emergencies), so the protection of the woman’s right to end a pregnancy is – as a practical matter – protected throughout all of the time that the procedure would be available to most women.
On December 1, the Court will hold a hearing on a request by the state of Mississippi to cast that rule aside and, with it, the Roe precedent and probably the Casey precedent, too.
Here is the question that Mississippi raised, and that the Court has agreed to consider: “Whether all pre-viability prohibitions on elective abortions are unconstitutional?”
The Justices clearly saw the momentous importance of that question as soon as they started looking at the Mississippi appeal. The Court’s staff scheduled the case to be considered by the Justices 22 times before the Court finally granted review, and on 21 of those occasions the Court put it off. No one outside the Court knows how lengthy the internal debates were before the postponements were set. Even if those debates were cursory, 21 opportunities is a very large number to ponder just the initial question of whether to accept a case for review; it takes only four Justices’ votes to grant review.
In the early part of that period, the other Justices may have been waiting for the arrival of their newest colleague, Justice Amy Coney Barrett, but they continued postponing – or prolonging — the discussion for weeks after she joined them in the conference room.
Mississippi, at first, seemed hesitant to press the plea to overrule the two key abortion precedents. Its initial appeal mentioned the idea of overruling only in a footnote, phrased in indirect, even awkward, language: “If the Court determines that it cannot reconcile Roe and Casey with other precedents or scientific advancements showing a compelling state interest in fetal life far earlier in pregnancy than these cases contemplate, the Court should not retain erroneous precedent.”
Besides posing the pre-viability issue as its first question, the state’s appeal added two procedural questions, each of which had the potential to narrow the scope of the case. The Court accepted only the pre-viability question for review and ignored the others.
Clearly emboldened by the Court’s action, the state’s lawyers thereafter put their primary emphasis on the question of overruling, and that is how the case has developed since.
The Court has at least these options: (1) go ahead and overrule its precedents, for any of a variety of reasons, (2) leave them intact as is and strike down the state law, (3) change the currently used “undue burden on women” standard for judging abortion laws and apply a new one to the state law or else leave it to lower courts to do so in the first instance, (4) make the viability line more flexible or abandon it in favor of some other medically acceptable formula, probably more favorable to fetal rights than to a woman’s rights.
The most fundamental choice for the Court, though, is whether to continue the half-century-long judicial process of balancing – under the Constitution — the interests of pregnant women, the interests in fetal life, and the interests of states opposed to abortion. If a majority is persuaded that the balancing has become futile, that would put Roe and Casey in real jeopardy.
Although the Court has overruled its own constitutional decisions some 141 times, by the Library of Congress’s count, the Court apparently has never erased entirely an individual’s legal right that the Justices had found to exist within the grand but undefined promises of the Constitution.
The Mississippi law at issue: The law, titled the “Gestational Age Act,” was written as a flat ban on abortion after 15 weeks of pregnancy, about nine weeks before fetal viability. The only exceptions to the ban would be in narrowly-defined medical emergencies or development of a defect in the fetus that would mean it could not survive outside the woman’s body.
The law declares that the state is pursuing three interests in seeking to narrow the opportunity for mid- or late-term abortions: protecting the developing fetus, protecting women’s health as pregnancy moves forward, and protecting the ethical reputation of Mississippi doctors from being involved in what the legislature called the “barbaric practice” of the most common method of abortion after 15 weeks.
The wording of the law does not specify why the legislature chose 15 weeks as the point that the ban would apply. It recites evidence about fetal development up to 12 weeks of pregnancy, at which “an unborn human being…has taken on the human form in all relevant aspects.” It may have set the ban for another three weeks to bolster its case against court challenges.
The law was challenged by the Jackson Women’s Health Organization, the only medical practice in the state whose doctors perform abortions.
Signed into law by Mississippi’s governor in March 2018, its enforcement was blocked one day later by a federal trial judge in Jackson, who later struck it down, concluding that it was “a facially unconstitutional ban on abortions prior to viability.” A federal appeals court agreed, commenting that, pre-viability, “states may not ban abortions. The law at issue is a ban.”
The state then appealed to the Supreme Court. The case has drawn a huge stack of friend-of-court briefs, on one side or the other, or straddling the two. The Biden Administration has joined in the case on the side of the abortion clinics and doctors, arguing that nothing has happened since 1973 to justify giving up on the constitutional right to abortion, or even to narrowing it in any significant way.
Because the Court’s major precedents, especially Roe v. Wade, are of long duration, those seeking to reverse course constitutionally probably will have the heavier challenge. While a strong undercurrent of morality and theology will be present as the case is heard, as has always been true when abortion is debated, the Court does not deal in that realm; It can only answer issues of law.
What are the issues that have emerged most prominently in the massive collection of legal writing on file at the Court? They can be stated in two categories: (a) the issues regarding overruling, and (b) the issues on alternatives to overruling. There is little, if any. common ground in how the two sides will suggest answers.
Questions about overruling:
** Was Roe v. Wade fundamentally flawed, in the beginning in 1973 and in its meaning over time, that overruling it is the compelling constitutional choice? Alternatively, was Roe right and continues to be needed and workable?
** Should the Court simply read abortion rights out of the Constitution, so that other institutions of society are free and able to make policy on procreation? Or, has America long since adapted, even if disagreeably, to the precedents?
** Will the Court’s integrity and will respect for it and for “the rule of law” suffer if Roe is not overruled? Or, will overruling damage the Court’s reputation?
** Has the very idea of a constitutional right to abortion so worsened the political polarization of America that it can no longer stand? Or, are the politics of abortion no concern of the Court?
** Why not simply acknowledge that medical care, including abortion, is constitutionally the province of state governments? Alternatively, does the Constitution take precedence over state policy interests?
** Is Planned Parenthood v. Casey just as flawed as Roe? Or did it do enough to rehabilitate, and therefore salvage, Roe?
** How do Roe and Casey compare to other developments of the right of privacy, and what effect – positive or negative – had they had on the constitutional concept of privacy?
** Does more recent history demonstrate that women in America have been able to control their own destiny without relying upon a constitutional right to terminate their pregnancies? Or, is personal autonomy for women an unchanging constitutional necessity?
Questions short of overruling:
** Because states allow abortion for medically necessary reasons, is it constitutionally advisable – or not – to relax the protection for elective abortions?
** Should the Court abandon – or retain — the notion that abortion rights are fundamental rights under the Constitution deserving the most protection? Is that too tough a standard, or still a necessary one?
** Will the Court now give support to the idea that the state may intervene to protect fetal life from the moment of conception? Or, would that pull the Court into an area beyond judicial competence?
** Will the Court now shift its constitutional focus on reproductive issues from the science of obstetrics, focusing on women, to the science of fetal development? Or, has the Court properly balanced the two?
** How should the states’ interest in the ethics of its medical profession figure in the constitutional abortion context? Or, is that purely a state matter?
On December 1, the Court is scheduled to have 70 minutes for examining those and, probably, others that will arise during that hearing. Undoubtedly, since it is the only hearing set for that day, it will be allowed to run considerably longer than the allotted time.
Other cases are also being heard next week. They will be discussed in this space closer to the dates of those hearings.
