Update after oral arguments. As explained below, the Justices to watch are Roberts, Barrett and Kavanaugh. During oral arguments, Barrett asked questions that appeared favorable to the state of Mississippi, and Kavanaugh seemed in favor of returning the question of abortion to the states (which could lock in a 5-4 vote). So, though oral arguments are never a certain indicator of a final outcome, most pro-life legal analysts were encouraged by oral arguments. The opinion will be released sometime next year. For a more in-depth analysis of the oral arguments, consider this article.
As I am sure you are aware, the U.S. Supreme Court is scheduled to hear oral arguments tomorrow, December 1st, in Dobbs v. Jackson Women’s Health Organization, a case involving Mississippi’s 15-week abortion ban. The question presented to the court is straightforward: “Whether pre-viability (viability–sufficiently developed to survive outside the womb) bans on abortion are unconstitutional.” And the state of Mississippi has directly asked the U.S. Supreme Court to overturn the court’s abortion jurisprudence in Roe v. Wade and Planned Parenthood v. Casey. I have reviewed a number of excellent in-depth articles on this topic, so I do not intend to produce a similar exhaustive review here. Rather, I have written this post as a (fairly) brief explainer for church leaders and other committed Christians. Here are (1) the key legal questions in the Dobbs case, (2) the potential outcomes and (3) what will remain true regardless of the outcome.
#1 The Key Legal Questions
Here’s a brief review of abortion law in the United States. Prior to 1973, abortion jurisprudence was a matter of state law. In Roe v. Wade, the U.S. Supreme Court held that a woman has a federal constitutional right to choose an abortion pre-viability according to a “right to privacy” (though this language is not in the 14th Amendment) and set out a trimester analysis. In Planned Parenthood v. Casey (1992), the Supreme Court upheld Roe’s holding on a woman’s right to abortion pre-viability but discarded the trimester framework and introduced the “undue burden” test. According to this test, a state may regulate abortion (even in the first trimester) unless that law or regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” 505 U.S. 833, 878, (1992). This standard has been further analyzed (though hardly clarified) in Whole Women’s Health v. Hellderstedt (2016) and in June Medical Services v. Russo (2020). In both cases, the Court held that the law in question failed the undue burden test.
In the Mississippi law at issue in Dobbs, the Mississippi legislature took a different approach by banning abortions after 15 weeks (which is pre-viability). Mississippi conceded at trial that it had no evidence of viability at 15 weeks. So, (as you can tell) this law did not attempt to “pass” the undue burden test as the Texas law in Whole Women’s Health and the Louisiana law in June Medical Services. Rather, this law squarely challenged the Roe and Casey standard and raised the straightforward question of whether or not pre-viability bans on abortion are constitutional.
#2 Potential Outcomes
Though the Supreme Court is theoretically composed of six “conservative” justice and three “liberal” justices, only Justice Thomas has explicitly stated his intention to overturn Roe and Casey. Further, many legal scholars are focused on Chief Justice Roberts, Justice Barrett and Justice Kavanaugh as the more “institutional” Justices that often favor limited rather than sweeping decisions. Given this dynamic, here are a few possible outcomes:
First, the Supreme Court could overturn Roe and Casey and return the issue to the states. Since U.S. Courts are generally bound by prior decisions, this would require the Court to determine: (1) that Roe and Casey are egregiously wrong, (2) that the Court’s abortion decisions have inflicted severe damage, and (3) that reliance interests do not support retaining the abortion precedents. For a full explanation of these Ramos factors and Mississippi’s thorough arguments in support, see the state’s brief in support of the Gestational Age Act. If the Supreme Court overturns Roe and Casey, Mississippi argues that the 15-week ban will clearly passes constitutional muster.
Second, the Supreme Court could do away with the viability standard and/or clarify the undue burden test. Mississippi argues that the viability standard (like the right to abortion) is nowhere to be found in the text of the Constitution and that it is not not persuasive. Under the viability standard, a mother can abort a child up to the time a child can survive outside the womb. So, a child’s frailty somehow precludes that fellow image bearer from the protection of the law? This does not follow and is not the standard in other areas of the law. Further, medical technology has greatly improved since Roe and Casey, and the viability standard prevents the precise application of those medical standards to abortion law. Also, the Supreme Court may clarify the undue burden test or, at least, lower the standard of review from a heightened standard (most laws fail to pass constitutional review under a heightened standard) to a lower standard (most laws pass constitutional review under a lower standard). If the Supreme Court takes this approach, it is possible that something akin to a 15-week ban would pass Supreme Court review while a heart-beat bill (banning abortion as soon as heart beat can be detected) would not.
Third, the Supreme Court could simply find the Mississippi law unconstitutional with some slight but non-substantive change to the legal standards explained above. Given the fact that the Supreme Court accepted this case and declined to rule on the recent Texas abortion law, this outcome appears unlikely.
To be clear, I believe that every person from conception to natural death bears the image of God and is worthy of the protection of our laws (Ps. 139:13-16; Jer. 1:5; Luke 1:32). This is a pre-political, Biblical principle, and I believe that abortion is the great moral issue of our times (though there are certainly other pressing issues as well). So, I am praying that Roe and Casey will be overturned, and I remain hopeful that this will occur. That said, I am aware that the Roberts court has often made systematic rather than sweeping decisions even with the addition of Amy Coney Barrett, and I would not be surprised by some variation of outcome number 2 explained above.
#3 What’s Next?
If Roe and Casey are overturned, the issue of abortion will return to the states; and many of the abortion laws passed by the states over the last few years will lock into place. However, according to one study, only 22 states would immediately ban or heavily restrict abortion; and most of the states with the highest abortion rates are not included in that number. Again, please hear me clearly, I would certainly celebrate a Dobbs ruling that overturned Roe and Casey, but the pro-life movement will still have much to do in advocating for the unborn, supporting vulnerable families and winning hearts and minds. Given the fact that overturning Roe has been the centerpiece of pro-life advocacy for a long time (and rightfully so), it is important to keep the above in mind.
If Roe and Casey are not overturned, this may signal a more systematic approach from the Court (similar to other recent constitutional questions such as religious freedom). And pro-life advocates should continue their efforts to chip away at abortion jurisprudence while impacting the culture through the pregnancy care center movement and other efforts.
In sum, I pray that Dobbs is a landmark, 50-years-in-the-making decision that ends Roe and Casey. If so, Dobbs will be a grand milestone for the pro-life cause, but it will not be the finish line. I say this as much to myself as to anyone else: we should remain committed to a continuing and comprehensive effort to end abortion and create a culture that values life from conception to natural death.