The End of Roe v. Wade?

The End of Roe v. Wade?

Heritage Explains

The End of Roe v. Wade?

Are all prohibitions on abortion before viability unconstitutional? The Supreme Court has never been directly asked that question.

This week, policy analyst Melanie Israel explains the case of Dobbs v. Jackson, what it was like outside the Supreme Court, and possible outcomes. 

Michelle Cordero: From The Heritage Foundation, I'm Michelle Cordero, and this is Heritage Explains.

Crowd clip: Now. Now.

Cordero: Thousands of activists made their way to Capitol Hill last week to stand outside The Supreme Court as oral arguments were made for the biggest abortion case in almost 50 years. This case is Dobbs versus Jackson Women's Health Organization. So what makes this case so big? It presents an opportunity for the Supreme Court to actually overturn Roe V Wade, returning abortion policy to the states and the American people. Today on heritage Explains, we talked to policy expert, Melanie Israel, on what it was like outside the courthouse, the facts of the case, and possible outcomes. Our conversation after this short break.

>>> Dobbs v. Jackson Women’s Health Organization: An Opportunity to Correct a Grave Error

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Cordero: Melanie, thank you so much for joining us.

Melanie Israel: Thank you for having me.

Cordero: So, Melanie, you were in the courtroom during oral arguments. What was it like in there?

Israel: Well, you know, during these strange COVID times, people weren't able to go into the courtroom so it's one of those kind of unique adjustments we've had to make. So I was able to stay outside the court at the rally for the entire morning and into the afternoon. And we were actually able to listen, several thousand of us all at the same time, listening to the audio feed of oral arguments happening inside the court, which is something that we would not have been able to do in the pre-COVID times so little bit of silver lining there.

>>> SCOTUS 101: Will SCOTUS Overrule Roe v. Wade?

Cordero: Could you hear well? Were people actually paying attention?

Israel: Yes. Yes. We could. We listened to the first, I'd say maybe 15, 20 minutes as things were getting kicked off. We didn't listen to the full two hours. I don't think a couple thousand people could have stayed quiet for that long, but it was just so powerful to see how our entire side out there, all of these pro-life people who had already been out there for a very long time, just getting so quiet and listening with baited breath as Justice Thomas came right out the gate asking questions, and listening to the Mississippi Solicitor General give his answers, listening to Justice Breyer, Justice Sotomayor. And I think that's probably something that many people out there in the crowd that day had never had the opportunity to do before. And so it was such a unique experience, I think, for the thousands of people who were out there that day.

Cordero: What an amazing experience. Yeah. So, okay. Let's break this down then. Let's take it back to like 101 level. Who is Dobbs? And what is it that they want?

Israel: Right. Right. So this case, Dobbs versus Jackson Women's Health Organization, you've got your two parties, the Jackson Women's Health Organization, that is the abortion clinic, challenging the law. And then Thomas Dobbs, he's the chief medical official for the state of Mississippi. So they're challenging Mississippi's Gestational Age Act and they have to have a party challenging that person. So he, in his capacity as the state's health official, is who's named in that case. But really the players today were Mississippi Attorney General Lynn Fitch, their Solicitor General, Scott Stewart. They had some of the members of the Mississippi delegation who enacted that law there in the state. And so it was a really strong showing from the entire state of Mississippi.

Cordero: And how did they make their case?

Israel: So to give people kind of a brief overview, Mississippi's Gestational Age Act, they passed it in 2018 and it restricts most abortions. There are exceptions for those rare cases of things like a severe abnormality, things like that. They passed this Gestational Age Act in 2018. It protects unborn children after 15 weeks gestation. And they went to great lengths to talk about why were passing this law. They want to protect unborn children, obviously. They also want to protect women because abortion procedures get more dangerous as the pregnancy progresses. And then they also wanted to uphold the integrity of the medical profession because late term abortion procedures are really and truly gruesome.

Israel: And that's something that we often don't talk about. And so Mississippi passed this law in 2018. It runs a foul of precedent set under cases like Roe versus Wade, Planned Parenthood versus Casey. You can't protect unborn children before viability, this stage at which they can survive outside the womb. And so this Mississippi law had been blocked by lower courts. They appealed their way all the way up to the Supreme Court. And that's why we're here today. And Mississippi is making the case that they should be able to legislate on this issue, that the American people should be able to have a say in these abortion policy debates, and that it's time for the Supreme Court to abandon Roe versus Wade.

Cordero: So did you get the sense in oral arguments that that could happen? What was the feeling?

Israel: Yeah. You know, there's always been this hope among the pro-life movement that the court will revisit Roe in some way. And technically speaking, they could do that in any kind of abortion related case. But this case is very unique because it's the first time that this question has been presented to the court so clear and so specifically. The question before the court in this case is very short and concise. Are all prohibitions on abortion before viability unconstitutional? And the Supreme Court has never been directly asked that question. They've never had to directly answer that question.

Cordero: And there isn't a great answer to that question. Right? Legal scholars haven't even been able to answer that.

Israel: You know, it's so interesting thinking through the possibilities in this case too, because we're here. There's this chance that the court might overturn Roe versus Wade. We've never had it presented in such clear terms since Planned Parenthood versus Casey in 1992, which reaffirmed Roe as the central holding. It would be remarkable obviously if the court were to overturn Roe, but then there's also this kind of possibility out there that maybe they say, yes, Mississippi can enact this 15 week bill, but we're also not going to completely overturn Roe, abandon Roe and Casey and some of these other doctrines. And so it would be kind of difficult to envision exactly how that would work because ultimately if the court is going to be drawing any lines, it's going to have this kind of arbitrary nature.

Israel: And so the viability line is arbitrary. It has no scientific justification. They [crosstalk 00:08:24].

Cordero: Did they get into that at all? You and I, in the past, have talked about new technology and other advancements in medicine that the United States could use to change the meaning of Roe. Did that come up at all?

Israel: Yeah. Yeah. And it's been something that was talked about extensively in all of the Amicus Briefs too which there have been a remarkable number of briefs on both sides filed in this case. And so that's something that the pro-life side is really leaning into very heavily. And they've had a lot of different medical professionals, doctors weighing in, scientists talking about what we know about prenatal development and unborn child's capacity to feel pain as early as the first trimester. The ways that we are able do surgery on children utero in ways that were impossible just two decades ago. Think of just...

Cordero: It's amazing.

Israel: ... how rapidly the science has advanced, how it's changed. If you look at an ultrasound image from 1973 compared to one of the 3D or 4D ultrasounds we can see today. There's just no comparison. It's a night and day difference. And that's something that both Mississippi and many of those Amicus Briefs have pointed out to the court. And obviously the other side doesn't really have a response to that. The science is what it is.

Cordero: Yeah. And we believe science.

Israel: Exactly. You know, Mississippi, that's one of the other things that they've leaned into you very heavily is that our laws should be rooted in modern science not stuck in 1973. And so reversing Roe would provide states with an opportunity to modernize their laws.

Cordero: Yeah. All right. Let's pivot just a little bit. What do polls say? How do Americans feel about this case? How do they feel about abortion in general?

Israel: Yeah. Yeah. You know, one of the claims that we hear so often from the other side is that Americans quote unquote support Roe, or they don't want the court to overturn Roe. And really we should take polls like that with a grain of salt, because most Americans don't realize what Roe did and they don't realize what would happen in the absence of Roe. Roe made abortions legal through all nine months of pregnancy for any reason. Most Americans don't support that. Most Americans support significantly restricting abortion to at most the first trimester or in very rare circumstances.

Cordero: I would say that most Americans don't know that that's even true.

Israel: Exactly. Exactly. Most Americans, and this is something I brought up in my speech outside the court, most Americans are shocked when they find out that America is one of only seven countries in the entire world that allows elective abortion after 20 weeks. That's five months. We have of babies like Micah Pickering we've talked about here at Heritage and at Daily Signal who was born when he was 21, 22 weeks old. That line of viability keeps moving earlier and earlier. And Americans are just shocked when they find out that we're in the company of countries like China, like North Korea. And that's something that came up during the questioning with the justices today pointing out what about the international norms here? And it really makes people think, okay, who's the extreme one here?

Cordero: Yeah.

Israel: America is an outlier.

Cordero: All right. So you're making me excited. When do we find out?

Israel: So the Supreme Court term is going to end this summer in June and the court doesn't ever tell us in advance when a decision could come.

Cordero: But did they vote in the like over the course of the next few days after oral arguments. When does that happen?

Israel: So we really don't know exactly what's going to happen within the inner workings of the court.

Cordero: Okay.

Israel: Their clerks, they'll start working on drafting opinions and diving back into those briefs and considering all of the points that were raised during oral arguments. But we're not going to have an indication of what the timing is going to be for them to release a decision. What we know for sure is that it will happen by the end of the term in June. Looking back historically many of the quote unquote social issue type of decisions have been those that go down to the wire towards the end of the term. And so a lot of commentators are tampering expectations that, look, we might have many, many months to wait, but that's okay because the pro-life movement understands that regardless of what happens in this case, that work to empower women, to promote life, to build that culture of life in our communities, that's going to continue happening and that's going to continue happening no matter what happens. But obviously reversing Roe would equip states to be able to do much more than they're able to right now.

Cordero: Melanie, thank you so much for being here. Thank you for your work protecting life and hopefully this summer after we know more, we can have you back on to talk about the ruling.

Israel: Great. Sounds good. Thanks for having me.

Cordero: And that's it for this week's episode. If you liked this episode, make sure to leave us a review wherever you listen. We hope your holiday season has kicked off well, and we'll see you next week.

Heritage Explains is brought to you by more than half a million members of The Heritage Foundation. It is produced by Michelle Cordero and Tim Doescher, with editing by John Popp.