Tuesday, May 25, 2021
By Kelly Folkers (May 25, 2021)
Last week, the Supreme Court agreed to hear a case that poses a direct challenge to the right to seek an abortion in the United States. It’s a test case that has been expected by reproductive rights advocates since the Supreme Court’s rightward lurch during Donald Trump’s four years in office: Trump appointed three conservative justices, all of whom have signaled willingness to roll back reproductive rights. If the Court significantly alters abortion jurisprudence or overturns Roe v. Wade (1973) entirely, reproductive rights will evaporate in many states, leaving millions of women and people who can get pregnant without a fundamental right to their bodily autonomy.
In Dobbs v. Jackson Women’s Health Organization, the Court has agreed to consider whether all bans on pre-viability abortions are unconstitutional. Although pre-viability bans on abortions are unconstitutional under Roe v. Wade and Planned Parenthood v. Casey, the rightward swing of the federal judiciary has emboldened state legislatures to pass pre-viability bans to test the courts. Just this past month, Texas Governor Greg Abbott (R) signed into law a bill banning abortion as early as six weeks—before many people know they are pregnant. South Carolina enacted a similar law in February. Texas and South Carolina join more than a dozen other states with similar laws, many of which have been held unconstitutional and enjoined by court order.
Dobbs involves a Mississippi law called the Gestational Age Act, which prohibits abortions if the “probable gestational age” of the fetus is more than 15 weeks. While there is dispute within the medical community regarding the exact age at which a fetus becomes viable and states vary in their definition of fetal viability (i.e., the fetus’s ability to survive outside the uterus), most experts agree that it is clinically improbable for a fetus to be viable under 22 to 24 weeks. Notably, the Act does not contain exceptions for rape or incest, allowing exceptions only for medical emergencies or severe fetal abnormalities. Mississippi’s sole abortion provider filed suit within hours of the law being enacted, and for now, the Fifth Circuit Court of Appeals has affirmed the U.S. District Court for the Southern District of Mississippi’s ruling to permanently enjoin the law.
Though the Supreme Court is more conservative than it has been in decades, abortion jurisprudence has long been settled in the United States: The state cannot place an undue burden on a pregnant person’s right to have an abortion pre-viability. In 1992, the Supreme Court reaffirmed Roe’s “central holding” that pregnant people have a protected right to seek an abortion in Planned Parenthood v. Casey. Casey adopted the “undue burden” test, which provides that state action violates the right to an abortion if it has the purpose or effect of imposing a substantial obstacle to a person seeking to abort a non-viable fetus. Although Casey permits regulation of abortion before viability, it does not question that bans on abortions before fetal viability are a violation of the Due Process Clause of the Fourteenth Amendment to the U.S Constitution.
Since Casey, Supreme Court decisions have focused on how to apply the undue burden test to laws that regulate the provision of abortion. In the 2016 case Whole Woman’s Health v. Hellerstedt, the Court struck down a Texas law requiring that abortion providers have admitting privileges at nearby hospitals and that facilities where abortions are performed meet the requirements for ambulatory surgical centers. The Court found that the requirements placed a substantial obstacle in the path of people seeking abortions and there was no evidence showing that either requirement made abortions safer. Balancing the law’s benefits and burdens, the Court held that the law imposed an undue burden. Even more recently, in 2020, the Supreme Court struck down an almost identical Louisiana admitting privileges law in June Medical Services v. Russo. The outcome of the cases was similar, but a notable difference was the justices who voted with the majority and their reasoning. In 2016, Chief Justice John Roberts was a dissenting justice, but in 2020 he added the crucial fifth vote to strike down the law in a separate concurring opinion. Justice Roberts stated that his respect for precedent motivated his decision to vote with the Court’s liberal bloc in June Medical, but he stood firm in rejecting the balancing test the Court applied in Whole Woman’s Health.
After June Medical, it remains uncertain what test the Court will apply to determine if restrictions on the provision of abortion impose an undue burden. But Dobbs presents the court with a different issue that goes to the heart of Roe’s central holding: whether a law banning abortion before viability can ever be constitutional.
Some constitutional law experts predict that if the Court holds that bans on pre-viability abortions are permissible, it will effectively allow states to outlaw abortion. Indeed if Roe v. Wade is reversed, more than 20 states have laws banning abortion at various points in fetal viability that are designed to be triggered automatically, enacted swiftly, or dormant only because of Roe, according to Nancy Northup, the president of the Center for Reproductive Rights. These laws would make abortions difficult or impossible to obtain in many states.
A decision in Dobbs is not expected until the spring or summer of 2022, but some state legislatures are already taking action to codify protections for pre-viability abortions if Roe v. Wade is overturned. Some states are going even further: In Oregon, Governor Kate Brown (D) recently signed the Reproductive Health Equity Act, which requires private insurers to cover abortions with no out-of-pocket costs. Similar bills are pending in New Jersey and Virginia. These bills go beyond what the federal Constitution guarantees because they obligate public and private insurers within their states to pay for abortion; the Supreme Court has previously held in Maher v. Roe and Harris v. McRae that state and federal payers, respectively, are not constitutionally obligated to cover abortions.
Until the Supreme Court hands down what may be a landmark decision for reproductive rights, people seeking abortions retain their right to do so, but just barely.