The Supreme Court’s 1973 decision in Roe v. Wade, writes Professor Mary Ziegler, “serves as the most prominent example of the damage judicial review can do to the larger society.” In Roe, the Court held that its previously created “right to privacy…is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” This holding, and the Court’s rules for implementing it, effectively invalidated abortion laws of all kinds passed by every state legislature in the previous 150 years. Roe remains one of the most controversial judicial decisions in American history for both its result and the means the Court used to reach it.
The Supreme Court reaffirmed Roe in 1983, its “general principles” in 1986, and its “essence” in 1992. The Court’s current abortion policy has the following features:
- States may not prohibit abortion before viability, or when an unborn child is “potentially able to live outside the mother’s womb,” which occurs at approximately 24 weeks of pregnancy. “The woman’s right to terminate her pregnancy before viability” is the “central principle of Roe v. Wade.”
- States may not restrict or regulate abortion before viability with “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
- States may prohibit abortion after viability “except when it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
- The “health” exception encompasses “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.” These factors include the reasons a woman wants an abortion in the first place.
The Supreme Court has thus created one of the most permissive abortion regimes in the world; the United States, for example, is one of only seven nations allowing elective abortions after 20 weeks of pregnancy. More importantly, this regime is far more permissive than under either the common law or statutes during centuries of English or American law. Many support this extreme policy, many others oppose it, but the issue for the Supreme Court is whether the Constitution of the United States requires it.
A case on the Supreme Court’s docket during the 2021–2022 term provides an opportunity to reconsider the answer to that question and decide whether Roe’s answer was an error that must be corrected. Dobbs v. Jackson Women’s Health Organization challenges the constitutionality of a Mississippi statute that bans most abortions after 15 weeks of pregnancy, well before viability. The Supreme Court signaled that it will focus squarely on Roe’s “essential holding” by agreeing to decide whether all bans on elective abortion before viability are unconstitutional. This Legal Memorandum examines Dobbs in the context of abortion in America, including both the history of abortion and public opinion, and abortion in the Supreme Court.
Abortion in America: The “History of Abortion”
Justice Harry Blackmun devoted more than half of his majority opinion in Roe v. Wade to an account of “the history of abortion, for such insight as that history may afford us.” This narrative preceded any legal analysis and, rather than any interpretation of the Constitution, is Roe’s real foundation. While it has acquired the status of “orthodox abortion history,” however, this narrative has been crumbling since it was created.
As Roe was heading for the Supreme Court, Cyril Means, General Counsel of the National Association for the Repeal of Abortion Laws, was constructing a “radically revisionist history” of abortion in America. His goal was to paint a long-term picture of abortion as a common procedure that the law treated lightly, if at all, in order to support the argument that abortion should be recognized as a constitutional right.
To that end, Means made two primary claims that the Supreme Court would later embrace: American women enjoyed a “liberty of abortion” under the common law “at every stage of gestation,” and the 19th-century statutes that replaced the common law were enacted “to protect the health of mothers, not to protect the lives of unborn children.” This narrative “simply left the unborn child out of the moral and legal equation.”
The legal team challenging the Texas abortion statute in Roe placed Means’ narrative at the center of their argument despite their own concern, reflected in an internal memorandum, that his conclusions “sometimes strain credibility.” This was a profound understatement, as a vast amount of scholarship and commentary, including by abortion rights supporters, has exposed the Means–Blackmun narrative as selective at best—and fiction at worst. This analysis will highlight only a few of its glaring omissions.
Midwife Regulations. Blackmun’s claim that abortion was unrestricted until “well into the 19th century” not only distorted the common law and statutes in both England and America, but entirely ignored other sources of legal control over abortion. Municipal ordinances and regulations, for example, had long prohibited midwives, who almost exclusively handled reproductive matters, from performing or procuring abortion throughout pregnancy.
These regulations existed in England as early as 1512 and were replicated in America long before independence. In July 1716, for example, the Common Council of New York City enacted a “Law Regulating Mid Wives within the City of New York.” It required midwives to take an oath not to “give any counsel or administer any…thing to any woman being with child” to induce a miscarriage or abortion.
Pro-Life Feminists. The Means–Blackmun narrative also ignored the near-unanimous consensus among 19th-century feminists that abortion should be prohibited as “child murder.” Elizabeth Cady Stanton and Susan B. Anthony, for example, regularly condemned abortion in The Revolution, a weekly newspaper they published from 1868 to 1872. In one editorial, for example, they called abortion a “crying evil” and a “revolting outrage against the laws of nature and our common humanity.” These feminists exposed how the sexual exploitation of women often included pressure to get abortions—but they never allowed a reason for abortion to become a justification for abortion.
Excising 19th-century feminists from this narrative was deliberate. More than 400 historians, for example, promoted the Means–Blackmun narrative in an amicus curiae brief filed in Webster v. Reproductive Health Services. A year later, the brief’s organizers admitted that, like Means had prior to Roe, they had simply “suspend[ed] certain critiques to make common cause.” Professor Sylvia Law, for example, admitted that the historians’ brief in Webster was “constructed to make an argumentative point rather than to tell the truth” and that ignoring 19th-century feminists’ opposition to abortion was a “major deficiency.” Professor Estelle Freedman was even more candid: The “political strategy of the brief,” she wrote, required “selective use of evidence, or lack of evidence.”
Pro-Life Physicians and Legislators. The Means–Blackmun narrative’s claim that protection of unborn children played no part in the enactment of increasingly restrictive 19th-century abortion laws blatantly defies a clear historical record. At its May 1859 meeting, for example, the American Medical Association (AMA) heard a report that rejected the “mistaken and exploded medical dogma” that the unborn child has no “independent and actual existence…as a living being.” The AMA unanimously adopted a resolution that condemned the “unwarrantable destruction of human life” and “the slaughter of countless children” and sought “the zealous co-operation of the various state Medical Societies” in pressing for laws prohibiting abortion, “at every period of gestation,” except when necessary to save the mother’s life.
Pro-life physicians during the 19th century included some of the first women to enter the medical profession. They included:
- Dr. Elizabeth Blackwell, the first woman to receive a degree from an American medical school, who wrote in her diary that the “gross perversion and destruction of motherhood by the abortionist filled me with indignation” so that “I finally determined to do what I could do” to stop this “form of hell.”
- The Revolution published accounts of lectures by Dr. Anna Densmore, a hospital reformer and ardent opponent of abortion, in which she often explained how an unborn child is a living human being “even before the mother…realiz[es] the movement of the child.” She condemned abortion as a “most deadly crime” that “stain[s] our hands with the blood of the innocent.”
- Dr. Charlotte Lozier was also one of the first female physicians in the United States. While a professor of physiology at the New York Medical College for Women, she campaigned both against abortion and for women’s rights, serving as the first vice president of the National Working Women’s Association.
In both England and America and under both the common law and statutes, the law treated abortion as the homicide of an unborn child, with its classification, prosecution, and punishment reflecting current knowledge about prenatal life and development. “Ensoulment,” the marker in the 13th century, gave way to “quickening,” or the point when a pregnant woman can feel her unborn child move. By 1868, when the 14th Amendment was ratified, 30 of the then-37 states had statutes banning abortion, and 27 of them prohibited abortion before quickening.
Professor Glanville Williams, himself an advocate of legalized abortion and a renowned criminal law scholar, wrote that physicians led the 19th-century campaign to restrict abortion “primarily because they believed unborn children must not be sacrificed unless the life of the mother was truly at stake.” Were it otherwise, states would not have denominated acts causing the death of the unborn child as “manslaughter” or “murder.” Because the clear public record on this critical issue was apparently an “inconvenient truth,” Blackmun, like Means before him, created a “revisionist history.”
By the mid-1960s, 44 states banned abortion except to save the mother’s life, and the rest had narrow exceptions for the mother’s physical health or if the pregnancy resulted from rape. Legislation to reform these laws was introduced in all but five states, and 17 of them did so. Of these, 13 states modified their abortion bans to allow abortions in a few narrow circumstances, and four states allowed abortions for any reason, but only during early pregnancy.
Public Opinion About Abortion
The Supreme Court itself made public opinion about abortion relevant by basing Roe’s holding on the “history of abortion,” including “man’s attitudes toward the abortion procedure over the centuries.” In addition, one of the factors the Supreme Court considers when deciding whether to overrule a precedent is whether it has been “universally accepted, acted on, and acquiesced in by…the general public.”
In this context, the issue is whether the general public supports the legality of the abortions that would have remained illegal without Roe v. Wade. These abortions are performed for reasons defined by how women wish to live their lives and correspond to the factors covered by the Court’s definition of “health,” such as “physical, emotional, psychological, familial, and the woman’s age.” The abortions made legal by Roe v. Wade are also sought to avoid the “detriment” that the Court said prohibiting abortion would impose, including “the distress, for all concerned, associated with the unwanted child…[and] the additional difficulties and continuing stigma of unwed motherhood.”
Polls About Unspecified Circumstances. Many polls ask whether abortion should be legal in all circumstances, no circumstances, or unspecified “certain” circumstances. Especially since the middle unspecified category is the largest, these polls are unhelpful without knowing more about whether “certain” is a broad or narrow category. The few polls that have focused on this question have found that it is the latter.
- In 1977 and 1979 Gallup polls, 55 percent said abortion should be legal “only under certain circumstances.” The poll then asked these respondents about abortion’s legality in specific circumstances. Even in the first trimester, majority support was limited to cases of danger to the mother’s life or physical health, rape, and incest.
- In recent CNN polls, an average of 51 percent of respondents said that abortion should be legal “under only certain circumstances.” The polls then found that three-quarters of these respondents defined “certain circumstances” as “a few” rather than “most.”
Polls About Specific Circumstances. Most polls asking whether abortion should be legal in specific circumstances focus only on those that occur very rarely, such as danger to a mother’s life or physical health, fetal deformity, or pregnancy resulting from rape or incest. Combined, these “hard cases” constitute only about five to 10 percent of abortions. Most Americans support the legality of abortion in these situations, and states had begun making them legal prior to Roe v. Wade.
Studies show that, in America and around the world, most women cite multiple reasons for seeking abortion. The most common reasons are avoiding interference with education or career (74 percent), financial considerations (73 percent), or the desire not to be a single mother (48 percent). These are among the abortions that Roe v. Wade made legal, and most Americans oppose them.
- In similar 2003 and 2018 Gallup polls, a majority, even in the first three months, said that abortion should be illegal “[w]hen the woman does not want the child for any reason.” Opposition rose to three-quarters in the last three months.
- In a June 2021 Associated Press poll that did not specify a period of pregnancy, 50 percent of respondents said that it should not be possible “for a pregnant woman to obtain a legal abortion if [she] does not want to be pregnant for any reason.”
Polls About Stage of Pregnancy. Polls consistently show that support for legal abortion, in general and even for rare “hard case” reasons, declines rapidly as pregnancy progresses.
- Multiple CBS News and Harris polls have found that support for legal abortion dropped from an average of 64 percent in the first three months of pregnancy to 23 percent in the second three months and 10 percent in the last three months.
- In a Quinnipiac University poll, support for abortion being “legal without restriction” dropped by 25 points from “up to 20 weeks” to “up to 24 weeks” of pregnancy.
- Polls by USA Today and Gallup during two decades show that support for abortion being “generally” legal fell from an average of 64 percent in the first three months of pregnancy to 25 percent in the second three months and 9 percent in the final three months.
- A June 2021 poll by the Associated Press found that support for abortion being legal in “all” or “most” cases declined from 61 percent in the first three months to 34 percent in the second three months and 19 percent in the final three months.
Summary. Polls about the legality of abortion in unspecified and specific circumstances, as well as during different periods of pregnancy, show that a large and consistent majority of Americans do not support the legality of most abortions that the Supreme Court made legal in Roe v. Wade.
Abortion in the Supreme Court: Pre-Roe Cases
Griswold v. Connecticut. Justice Harry Blackmun observed in Roe that the Supreme Court “or individual Justices” have “recognized that a right of personal privacy…does exist under the Constitution.” Two of these precedents have frequently been identified as “Roe’s predecessors.”
In Griswold v. Connecticut, the Supreme Court found unconstitutional a state law prohibiting the use or assistance to use contraceptives. The executive director and medical director of the Planned Parenthood League of Connecticut, both physicians, were found guilty as accessories of giving information and medical advice to married persons about “the means of preventing conception.” They challenged the fine they received, arguing that the statute violated the 14th Amendment.
The Supreme Court found the law unconstitutional, but for a different reason. Individual provisions of the Bill of Rights, Justice William Douglas wrote for the majority, not only protect “specific rights” but have “penumbras, formed by emanations from those guarantees,” that protect associated “peripheral rights.” The peripheral rights give the specific rights “life and substance” and make them “fully meaningful.” In Griswold, however, the Court held that the penumbral emanations from “several fundamental constitutional guarantees” collectively create a separate, free-standing right to privacy.
Eisenstadt v. Baird. After a 1967 lecture on birth control and overpopulation at Boston University, activist William Baird gave a package of contraceptive foam to a student attendee. He was convicted of violating a Massachusetts statute that prohibited “giv[ing] away…[any] article whatever for the prevention of conception.” The only exceptions were for a physician or pharmacist filling a prescription for “a married person.” The Supreme Court concluded that treating married and unmarried persons differently violated the 14th Amendment’s Equal Protection Clause. Douglas wrote for the majority:
If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
United States v. Vuitch. The Supreme Court decided one abortion-related case prior to Roe. In United States v. Vuitch, a physician challenged his indictment for violating a District of Columbia law that allowed only abortions that are “necessary to preserve the mother’s life or health.” The Supreme Court rejected Vuitch’s argument that the statute was unconstitutionally vague, construing the word “health” broadly to include “psychological as well as physical well-being.” Vuitch did not raise, and the Court did not address, the issue of a constitutional right to abortion.
Roe v. Wade
By the time the Court decided Roe v. Wade, the Supreme Court’s privacy jurisprudence was already in disarray. Griswold said that the right to privacy is found in the penumbra of the Bill of Rights, Eisenstadt extended Griswold but on equal protection grounds, and the district court in Roe said that the right to abortion is found in the Ninth Amendment. In Roe, the Supreme Court added multiple jurisprudential wrinkles by holding that the right to privacy is instead “founded in the Fourteenth Amendment’s concept of personal liberty.” The Court thus appeared to transplant the requirement of a “compelling state interest” for infringing on a “fundamental” right from the equal protection to the due process context, but failing to apply this standard at all. Dissenting in Roe, Justice William Rehnquist wrote that the Court “will accomplish the seemingly impossible feat of leaving this area of the law more confused than [the Court] found it.”
Justice Clarence Thomas has explained that federal judges “interpret and apply written law to the facts of particular cases.” The Supreme Court, however, eschewed this basic approach in Roe v. Wade, putting off any examination of the constitutional issue at the heart of the case until Section VIII, nearly 40 pages into a 54-page majority opinion. Blackmun acknowledged both that “[t]he Constitution does not explicitly mention any right of privacy” and that the presence of the unborn child makes abortion “inherently different” from other unenumerated rights that the Court had deemed to be fundamental. Because the right to abortion had no connection to the Constitution’s text—and barely any connection to precedent—Blackmun justified creating the right to abortion by offering a list of “detriment[s]” that “denying this choice” would impose.
Rather than defending what the Supreme Court actually said in Roe, some scholars resort to “rewriting” it or suggesting “what Roe v. Wade should have said.” Just 14 years after Roe was decided, the critical literature had so proliferated that three scholars organized it into 12 different categories. Scholars and commentators across the ideological spectrum have shown how little, if anything, Roe has to commend it.
- Professor John Hart Ely, who candidly favored Roe’s result, called it a “very bad decision…because it is…not constitutional law and gives almost no sense of an obligation to try to be.”
- Professor Kermit Roosevelt, who similarly supports recognition of a constitutional right to abortion, writes: “As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural history review of abortion restrictions.”
- Professor Richard Morgan writes: “The stark inadequacy of the Court’s attempt to justify its conclusions” suggests that “the Court, finding no justification at all in the Constitution, unabashedly usurped the legislative function.”
- Professors Philip Heymann and Douglas Barzelay write that Roe “leaves the impression that the abortion decisions rest in part on unexplained precedents, in part on an extremely tenuous relation to provisions of the Bill of Rights, and in part on a raw exercise of judicial fiat.”
- Professor Mark Tushnet writes that “[m]ost academic commentators probably believe that, as a matter of sound public policy, access to abortions should be relatively unrestricted. But none has been able to provide conclusive arguments that the Supreme Court correctly found that policy in the Constitution.”
In Casey, two decades after Roe, the Supreme Court claimed that it was “resolv[ing]…[this] intensely divisive controversy” by “call[ing] the contending sides…to end their national division by accepting a common mandate rooted in the Constitution.” The Court may have made that call, but neither side of the controversy appeared to be listening. Including Roe, the Supreme Court has decided more than two dozen cases with written opinions involving the right to abortion. Several of these cases challenged abortion bans, while others challenged regulations of the abortion decision-making process or how abortions are performed. Several cases challenged the refusal of state governments or Congress to subsidize abortion, holding that the government “has no affirmative duty to ‘commit any resources to facilitating abortions.’” A policy choice to subsidize childbirth but not abortion “‘places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy.’”
These cases produced nearly 90 majority and separate opinions, with the average number of opinions per case higher after Casey claimed to have ended the national division. Even Justices who were in the majority in Roe and Casey later complained that those decisions were being misapplied. Chief Justice Warren Burger was in the Roe majority but, within little more than a decade, joined a dissent arguing that the Court was striking down abortion restrictions that Roe was supposed to allow and then writing his own dissent to say that Roe should be reexamined.
Similarly, Justices Anthony Kennedy and David Souter were in the plurality responsible for the joint opinion that “represents the holding of the Court” in Casey. Eight years later, in Stenberg v. Carhart, Kennedy joined a dissent accusing the majority of “repudiat[ing]” Casey’s recognition that state legislatures have a “vital” role in addressing “grave and serious issues” such as “promot[ing] the life of the unborn.” In 2007, Souter joined a dissent in Gonzales v. Carhart accusing the majority of “refus[ing] to take Casey and Stenberg seriously” and “[r]etreating from [those] prior rulings.”
Public Opinion About Roe v. Wade
Abortion rights advocates cite polls in which a majority of Americans say that the Supreme Court should not overrule Roe v. Wade. For example:
- January 2017 (Pew): 69 percent oppose the Supreme Court “completely overturning” Roe v. Wade.
- July 2018 (NBC/WSJ): 71 percent oppose overturning Roe v. Wade.
- June 2019 (PBS/Marist): 77 percent support upholding Roe v. Wade “in some form.”
Skepticism about these results, however, is warranted for several reasons. First, many Americans know nothing about Roe, and much of what others do know is incorrect. According to Pew Research Center polls, for example, nearly 40 percent of all Americans and 57 percent of those under 30 cannot associate Roe with any particular subject or believe that it involved issues such as school desegregation or environmental protection.
Second, many polls asking about support for Roe v. Wade describe it in ways that falsely inflate its support. Polls by the Pew Research Center and NBC News, for example, frequently say that Roe established “a woman’s constitutional right to an abortion, at least in the first three months of pregnancy.” Acceptance of this incorrect description inflates support for Roe because support for legal abortion is highest in the same period. Support for Roe would likely decline significantly if these polls accurately described it as establishing “a woman’s constitutional right to an abortion during all nine months of pregnancy.” Research has yet to find polls that include such an accurate description.
Third, opinions of Roe are likely influenced by what people think would happen if it were overturned. CBS News polls asking if Roe should be overturned, for example, say that it “made abortion legal.” Respondents who incorrectly believe that overturning Roe would automatically make abortion illegal may oppose doing so for that reason alone.
Roe v. Wade and Stare Decisis
Stare decisis is a judicial doctrine creating a rebuttable presumption that a court will follow its own past decisions. Stare decisis must be a presumption in a system of limited government based on the rule of law. Alexander Hamilton explained that “[t]o avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.” Similarly, Justice Samuel Alito explained during his January 2006 confirmation hearing that stare decisis is “a fundamental part of our legal system…because it limits the power of the judiciary.”
This stare decisis presumption must also be rebuttable. If it were not, the Supreme Court would ultimately control, rather than be subject to, the Constitution’s meaning. In that event, wrote Thomas Jefferson, the Constitution would become “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” This would eliminate the distinction, critical for properly defining the “judicial function,” between interpretation and “amendment in the guise of interpretation.”
Stare decisis, therefore, is the “preferred course,” but it is not a “mechanical formula of adherence to the latest decision.” The Supreme Court applies what it calls “principles of stare decisis” to determine whether “strong grounds” exist to rebut the presumption in favor of following a precedent. Justice Elena Kagan identified the context for applying these principles at her 2010 confirmation hearing, describing the “long-standing” and “very well accepted” principle that stare decisis plays a less important role in the context of constitutional decisions. This is because, short of a constitutional amendment, the Court’s willingness to overrule its past decisions is the only way to correct an erroneous constitutional interpretation.
With that general principle in mind, the Court will use several factors to determine whether a precedent was “wrong in the first place” and whether “less harm will result from overruling the decision than from allowing it to stand.” Put differently, the Court uses these factors to identify “judicial error, the seriousness of the error, and the cost of correcting the error.” The factors include the quality of a precedent’s reasoning, its “workability,” its consistency with related decisions, whether the understanding of relevant facts has changed, and the reliance interests implicated by the prior decision.
The first step in this analysis is perhaps the easiest: No one honestly argues that Roe v. Wade was correctly decided in the first place. In Professor Ely’s words, Roe “is not constitutional law, and gives almost no sense of an obligation to try to be.” The decision does not come close to meeting the standard of being “universally accepted, acted on, and acquiesced in by courts, the legal profession, and the general public.”
Despite its assertion in Casey, the Court’s abortion cases have settled nothing—and the general public has consistently opposed most of the abortions that Roe made legal. Rather than defending Roe, abortion rights activists are left trying to defend keeping it, some claiming that Roe is a “super” precedent, virtually immune from being overruled because it has been reaffirmed dozens of times.
A past decision’s reaffirmance strengthens its precedential weight, but like any judicial holding, that reaffirmance must be explicit. “Most important, the court must have decided the issue for which the precedent is claimed; it cannot merely have discussed it in dictum, ignored it, or assumed the point without ruling upon it.” To be counted as a “reaffirmance,” the issue of Roe’s validity as a precedent must have been “brought to the attention of the court” and “ruled upon” through a “dispositive judgment” or a “determinate holding.” Only three Supreme Court decisions meet this standard.
- In Akron v. Akron Center for Reproductive Health, the Court voted 6–3 that while “the doctrine of stare decisis [is] perhaps never entirely persuasive on a constitutional question…[w]e respect it today, and reaffirm Roe v. Wade.”
- In Thornburgh v. American College of Obstetricians and Gynecologists, the Court voted 5–4 to reaffirm “the general principles laid down in Roe and in Akron.”
- In Planned Parenthood v. Casey, the Court also voted 5–4 to reaffirm Roe’s “central holding” that “the Constitution protects a woman’s right to terminate her pregnancy in its early stages.”
By declining margins, therefore, the Supreme Court has reaffirmed some aspect of Roe v. Wade three times in nearly 50 years. As Senator Orrin Hatch (R–UT) has written, there is nothing “super” about Roe v. Wade as a precedent. Should the Court reconsider whether Roe remains a valid precedent, it will apply traditional principles of stare decisis to determine if Roe should be retained or abandoned. The case to be argued on December 1, 2021, provides that opportunity.
Dobbs v. Jackson Women’s Health Organization: Mississippi’s Gestational Age Act
On March 19, 2018, Mississippi enacted House Bill 1510, the Gestational Age Act (“Act”). The Act limits all abortions in the state to fifteen (15) weeks’ gestation except in cases of medical emergency or severe fetal abnormality. The Act provides that:
(a) Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not perform, induce, or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being…. The determination of probable gestational age shall be made according to standard medical practices and techniques used in the community.
(b) Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.
Two features of the law are central to this litigation. First, it is a ban, rather than a regulation, on the performance of abortions. Second, this ban operates well before viability, which the Supreme Court established in Roe, and reaffirmed in Casey, is the “critical fact.” The Court might find it necessary, in the context of a constitutional challenge to such a pre-viability ban, to first determine whether viability, and therefore Roe’s “central principle” itself, remains legitimate.
The Act asserts that the state has an interest in protecting maternal health because the maternal risks from abortion increase proportionately relative to gestational age. In addition, the abortion method used after 15 weeks, known as dilation and evacuation, is “a barbaric procedure, dangerous for the maternal patient, and demeaning to the medical profession.” Echoing emphasis by 19th-century physicians on current medical knowledge, the Act highlights facts about fetal development that were unavailable to the Supreme Court in Roe or even in Casey. Modern medicine reveals, for example, that a 15-week-old unborn child has all major organs, moves all fingers separately, exhibits a preference for right or left-handedness, and is responsive to pain.
The Litigation. The only abortion clinic in Mississippi, Jackson Women’s Health Organization, and one of its doctors, Dr. Sacheen Carr-Ellis, filed suit challenging the Act on the day it was signed into law. They sought a temporary restraining order to prevent the Act’s enforcement while its constitutionality was being litigated and summary judgment on the merits. On November 20, 2018, the U.S. District Court concluded that, since the Supreme Court said that pre-viability bans must not be allowed, this ban’s constitutionality “hinges on a single question: whether the 15-week mark is before or after viability.”
The U.S. Court of Appeals for the Fifth Circuit affirmed, explaining that the state’s interests would have been relevant if this law regulated, rather than banned, abortion. The Supreme Court, however, had clearly held that viability “marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” As a result, “before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” Since Mississippi had conceded in this litigation that it had no evidence of viability at 15 weeks of gestation, the appeals court held that the ban was inconsistent with Roe and Casey.
On June 15, 2020, Mississippi formally asked the Supreme Court to review the Fifth Circuit’s decision, raising three issues:
- Whether all pre-viability bans on elective abortion are unconstitutional;
- The proper legal standard for evaluating laws that operate before viability to promote state interests such as protecting women’s health, the dignity of unborn children, and the integrity of the medical profession; and
- Whether abortion providers have legal standing to challenge a law that protects women’s health from the dangers of late-term abortions.
The Justices delayed consideration of the Dobbs petition until their January 8, 2021, conference; they then went on to consider the petition 12 more times before finally announcing on May 17, 2021, that they would grant certiorari. However, their review would be limited to only one of the three questions presented: whether all pre-viability prohibitions on elective abortions are unconstitutional.
Since the Court, in both Roe and Casey, effectively answered this question in the affirmative, agreeing to revisit this question suggests that the Court will reconsider the basic validity of these precedents.
Mississippi’s Arguments. Recall that the Supreme Court concluded that the Constitution protects a right to abortion without actually interpreting the Constitution. Mississippi fills this gap in its brief to the Court, in which Attorney General Lynn Fitch argues that nothing in the Constitution’s text, structure, history, or tradition supports a constitutional right to abortion. In the absence of such a right, Mississippi may legislate on abortion as it does on other subjects.
When assessing any democratically enacted law that does not implicate a constitutional right, courts will generally uphold the law if there is a rational basis to conclude that the law will help achieve a legitimate objective of the state. The state argues:
Roe and Casey are…at odds with the straightforward, constitutionally grounded answer to the question presented. So the question becomes whether this Court should overrule those decisions. It should. The…case for overruling Roe and Casey is overwhelming…. Roe and Casey have proven hopelessly unworkable. Heightened scrutiny of abortion restrictions has not promoted administrability or predictability. And heightened scrutiny of abortion laws can never serve those aims. Because the Constitution does not protect a right to abortion, it provides no guidance to courts on how to account for the interests in this context…. Roe and Casey have inflicted significant damage.
Mississippi targets viability as the key constitutional concept. While often placed at approximately 24 weeks, viability is an inherently subjective standard and depends on many variables. Medical advances have now made the survival of even 22-week-old unborn children possible. Nearly four decades ago, in Akron, Justice Sandra Day O’Connor observed: “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.” Viability is no more an objective standard today than it was then.
With O’Connor’s support, the Supreme Court in Casey appeared to simplify its method of evaluating abortion restrictions by abandoning Roe’s system of different rules for different trimesters in favor of a two-part framework. Mississippi points out, however, that all the Court succeeded in doing was creating another subjective, unworkable standard of whether a restriction is an “undue burden” on the right to abortion. Mississippi argues that there “is no objective way to decide whether a burden is ‘undue,’” and in case after case, the court has been deeply divided “not just over what result Casey requires…but also over what Casey even means.”
Mississippi’s brief also addresses Roe’s real foundation, namely, the “detriment” that prohibiting abortion would impose on women. The circumstances that pregnant women face have changed markedly in the past 50 years. These include expansion of the type and flexibility of work opportunities, laws preventing pregnancy discrimination, provision of sick and family leave time, access to childcare and affordable contraception, and “safe-haven” laws. Women today are, more than ever before, able to avoid the “detriment” that the Supreme Court described in 1973 as practically inevitable. Women have, Mississippi reminds the Court, reached “the highest echelons of economic and social life independent of the right bestowed on them by seven men in Roe.”
Amicus Briefing in Dobbs. Amicus curiae (“friend of the court”) briefs are filed in a particular case by individuals or groups that are not litigants but who seek to provide perspective, information, or arguments for the Supreme Court’s consideration. Justice Hugo Black once observed that “[m]ost cases before this Court involve matters that affect far more people than the immediate record parties,” and amicus briefing can address this broader context. Amicus briefs are filed in roughly two-thirds of the civil cases argued before the Supreme Court each year, and multiple filings are common. During its 2019–2020 term, for example, a total of 911 amicus briefs were filed in 57 cases, an average of 16 amicus briefs per case.
The highest number of amicus briefs filed in a single case is 148 in Obergefell v. Hodges, which created a right to same-sex marriage, and 136 in National Federation of Independent Business v. Sebelius, which found the Affordable Care Act’s health insurance mandate to be constitutional under Congress’ power to tax. Dobbs is close behind at 132 amicus briefs: 81 supporting Mississippi and 51 supporting the abortion clinic. Most of these amicus briefs, however, are filed on behalf of multiple parties. These amicus briefs each make particular (often overlapping) arguments. In combination, however, this volume of briefs and parties shows not only the visibility and interest in this case, but is striking evidence that abortion law, as represented by Roe and Casey, is anything but settled.
Dobbs Analysis. The difficulty of anticipating, let alone predicting, how the Supreme Court will rule in any individual case certainly intensifies when the Court reconsiders precedent as significant as Roe v. Wade. Many thought, for example, that the Court would do so in Webster v. Reproductive Health Services, which drew a then-record 78 amicus briefs. However, the Court declined even to reconsider Roe. That said, some current considerations support the possibility that the Court will take this step in Dobbs.
To be sure, as discussed above, there exists a rebuttable presumption that the Court will follow its precedents. This presumption, however, is weakest regarding precedents that interpreted the Constitution. Of the 233 cases in which the Supreme Court has reversed its own prior precedents, more than 60 percent involved constitutional questions. These include overruling a precedent even where “[m]ore than 20 States ha[d] statutory schemes built on [it]” and “[t]hose laws underpin[ned] thousands of ongoing contracts involving millions of employees.”
A study conducted by the University of Pennsylvania Law School found that in cases in which the Supreme Court grants review, the party appealing to the Supreme Court is successful 60 percent of the time, compared to 37 percent for the responding party. The authors opined that at least one factor motivating the Court to grant review of a case is the perception that at least some Justices thought that the case below was wrongly decided.
As the Court of Appeals for the Fifth Circuit was duty bound in Dobbs to affirm the trial court’s grant of summary judgment for plaintiff abortion providers because of Roe and Casey’s unyielding grasp, and because the Supreme Court limited its review of the Dobbs case to the sole question of whether pre-viability restrictions on abortion are unconstitutional, it is highly likely that at least four of the Justices now believe its abortion precedents deserve re-examination.
The Court’s most recent decision in an abortion case may also provide some insight. June Medical Services v. Russo was a 5–4 decision to strike down a Louisiana law requiring physicians performing abortions to have admitting privileges at a hospital within 30 miles of where an abortion is performed or induced.
Chief Justice John Roberts agreed with the result in June Medical, even though he had taken the opposite position in Whole Woman’s Health v. Hellerstedt, which struck down an identical law in Texas four years earlier. Roberts explained that the contrary result was now required since Hellerstedt is now a relevant precedent. The “legal doctrine of stare decisis,” Roberts wrote in a separate opinion, “requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”
Justice Clarence Thomas dissented in June Medical, arguing that, the Hellerstedt precedent notwithstanding, the Court was perpetuating its ill-founded abortion jurisprudence by “enjoining a perfectly legitimate state law and doing so without jurisdiction…. Our abortion precedents are grievously wrong and should be overruled.” He also explained that, while the laws challenged in Hellerstedt and June Medical were similar, the objective sought by the respective plaintiffs were not. In June Medical, the plaintiffs wanted the Court to establish a blanket rule that abortion providers have legal standing to challenge abortion restrictions simply because they perform abortions, that is, “based solely on their role in the abortion process.” The right created in Roe and continued in Casey belongs to women, not to abortion providers.
Justices Samuel Alito and Brett Kavanaugh also dissented and wrote separate opinions, apparently unpersuaded by Roberts’ argument about precedent. In particular, Alito pointed out that Louisiana had not asked the Justices to re-examine Casey but also argued that Casey ruled out the balancing test adopted in Whole Woman’s Health v. Hellerstedt, and that because it misinterpreted Casey, it should be overruled. In his brief dissent, Kavanaugh noted that “the factual record at this stage of plaintiffs’ facial, pre-enforcement challenge does not adequately demonstrate that the three relevant doctors…cannot obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law.” In short, without more information, Kavanaugh argued that the abortion providers had failed to demonstrate there was sufficient proof of an undue burden on the right of Louisiana women to get an abortion sufficient to invalidate the law.
Justice Neil Gorsuch’s strongly worded dissent in June Medical, in which he focused on the extent of states’ authority to regulate abortion and how the courts may properly be utilized to challenge such laws, may prove particularly significant. In that dissent, Gorsuch explained that “[t]he judicial power is constrained by an array of rules” about whether parties may bring suits to court, how courts must handle those suits, and the kind of relief that courts may provide to successful litigants. “[C]ollectively,” Gorsuch wrote, “these rules…help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.”
The decision in June Medical, Gorsuch wrote:
doesn’t just overlook one of these rules. It overlooks one after another. And it does so in a case touching on one of the most controversial topics in contemporary politics and law, exactly the context where this Court should be leaning most heavily on the rules of the judicial process. In truth, Roe v. Wade…is not even at issue here. The real question we face concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.
After hearing oral arguments on December 1, 2021, the Supreme Court will likely not announce its decision in Dobbs until late in its term, which will likely conclude at the end of June.
Given the conflict between the plain terms of the Act, and the Court’s determinations in Roe and Casey that states may not prohibit abortions prior to viability, taken together with the Court’s caution that states possess interests “from the outset of the pregnancy in protecting (1) the health of the mother and (2) the life of the fetus that may become a child,” many legal scholars consider the Dobbs case to be the ripest opportunity the Court has had yet to revisit Roe, and that “good reasons exist for the Court to reevaluate its jurisprudence.”
Possible outcomes include:
- Mississippi wins, Roe and Casey are reversed. By eliminating a constitutional right to abortion, this decision would restore the states’ authority to regulate or prohibit abortion as they see fit. Based on laws currently in place, 18 states would ban abortion while 13 states and the District of Columbia would recognize a largely unrestricted right to abortion. The remaining states would be free to legislate in this area.
- Mississippi wins, Roe and Casey are further undermined. The Court could conceivably find that Mississippi’s abortion ban is constitutional by further limiting or reconfiguring Roe and Casey. The way the Court articulates a new standard would determine how much additional flexibility states would have to restrict abortion. The Court could, for example, relax its rigid rule against all pre-viability abortion bans and make more flexible its rule that abortion restrictions may not impose an “undue burden” on the right to abortion.
- Mississippi loses, Roe and Casey are reaffirmed. In this scenario, the Court could once again assert that viability is the constitutional dividing line and that all pre-viability bans constitute an unconstitutional “undue burden.”
Speaking in the same year that Casey was decided, Justice Ruth Bader Ginsburg observed that the Supreme Court has a “will for self-preservation and the knowledge that they are not a bevy of Platonic Guardians, and the Justices generally follow, they do not lead, changes taking place elsewhere in society.” Roe was an egregious and glaring exception; the Supreme Court attempted to lead the country in a different direction on abortion, but the country has not followed.
Roe v. Wade remains one of the most controversial judicial decisions in American history. Even after 50 years, dozens of additional abortion decisions, and an ongoing vigorous national debate, most Americans oppose most of the abortions that Roe made legal. Even the most creative legal scholars have failed to find a reasonable constitutional justification for Roe, and most have stopped trying. Roe’s abortion regime is far more permissive than the common law or statutes, in England or America, have ever provided. Lower courts have never been able consistently to discern and apply the subjective holdings in the Court’s abortion cases. And even the Court’s chosen basis for creating the right to abortion—the detriment that prohibiting abortion would impose—has been significantly undermined by dramatic economic, legal, and social changes in society and culture.
From changing public sentiment on abortion to advances in medical technology that reveal the mysteries of fetal development to expanding opportunities for women, the redefinition of their societal roles, and a wanting connection between abortion and women’s economic and social progress, it is appropriate for the Court to—as Justice Ginsburg rightly noted—follow the changes that have occurred elsewhere in society and put a halt to its misguided leadership on the issue of abortion.
The only solution to this crisis is for the Supreme Court to correct its grave error and acknowledge that the Constitution does not protect a right to abortion. Roe and Casey went beyond distorting or incorrectly interpreting the Constitution; they ignored the Constitution altogether, exceeding the judiciary’s proper authority in the process. Dobbs v. Jackson Women’s Health Organization provides an opportunity for the Court to correct this grave error.
Sarah Parshall Perry is Legal Fellow in the Edwin J. Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation. Thomas Jipping is Senior Legal Fellow in the Meese Center.