The U.S. Supreme Court is reviewing arguments related to Dobbs v. Jackson Women’s Health Organization. This case concerns a Mississippi law which bans abortions after 15 weeks of pregnancy. When the Supreme Court agreed to hear the Mississippi case, it was to answer the question, “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
There is no "right to abortion" in the literal words of the US Constitution. It was created through various court cases over several decades.
The first case was Griswold v. Connecticut in 1963. Connecticut had a law that banned contraception. A gynecologist and the head of Planned Parenthood, Estelle Griswold, opened a birth control clinic in New Haven, with the intention of challenging the constitutionality of the statute under the Fourteenth Amendment. When SCOTUS reviewed the case, the majority ruled there is an implied "right to privacy" within the Constitution.
The next case was Roe. v. Wade in 1973. This case challenged a Texas law which banned abortions. In Roe, SCOTUS determined that the Constitution protects the rights of people, and since the unborn are not yet people, they are not entitled to equal protection under 14th Amendment. They ruled that "a woman's right to privacy" supersedes the right to life of the unborn, therefore abortion could not be prohibited by state law, at least within the first trimester. Their ruling, however, did grant that states could place "some" restrictions on abortion in the second trimester.
On the same day as Roe, SCOTUS ruled on Doe v. Bolton. This established that a state could not prohibit abortion if continuing the pregnancy would affect the "health" of the mother. "Health" would have to include any factors which might have an impact on her "well-being" (financial, familial, social, psychological or even her age). Changing the definition of this one word made abortion-on-demand legal through all nine months of pregnancy.
In 1992, Casey v. Planned Parenthood changed the legal standard from "trimesters" to "viability." Casey challenged a Pennsylvania law that required a) informed consent and a 24 hour waiting period prior to the procedure; b) a minor seeking an abortion had to have the consent of one parent (or get a judicial bypass); and c) a married woman had to indicate that she notified her husband of her intention to abort the fetus.
Under Casey, the Court said states couldn't set up any regulations that would impose an "undue burden," on a woman's right to abort prior to fetal viability. Undue burden was defined as a "substantial obstacle in the path of a woman seeking an abortion." And "viability," was defined as the point where the fetus could survive outside the womb.
So, based on the accumulated rulings of Griswold, Roe, Doe and Casey, the Court has determined that states cannot prevent or make it difficult for a woman to get an abortion prior to fetal viability, and after viability, no law can prevent the abortion if it would impact her health or well-being.
Fast forward to today, the Mississippi Law prohibiting abortion past 15 weeks, was passed specifically to challenge the ruling based on fetal viability. The pro-life attorney contend that both Casey and Roe were egregiously wrong decisions, resting on arbitrary points of viability where restrictions might be imposed. They argue that by 15 weeks, a fetus has a heartbeat, can feel pain, has fingernails and all organs are present. As such, the unborn have a right to life which must be protected under the 14th Amendment, and therefore one or both of the Court's previous decisions should be overturned.
The pro-abortion lawyers insist that the principle of "stare decisis" should apply. This Latin phrase roughly translates “to stand by things already decided.” They argue that the Court should stand by its previous decisions and hesitate to overturn precedents. The pro-abortion attorney also argued restricting abortion would amount to "forced parenting, forced motherhood, [and] would hinder women’s access to the workplace and to equal opportunities."
No one knows how the Justices will rule, but there were interesting questions asked.
Justice Amy Coney-Barrett pointed out that all 50 states have "safe haven" laws, where a woman can surrender a child and terminate responsibility without penalty. She asked, “Why don’t the safe haven laws take care of [the forced parenting] problem?" In other words, if the woman can simply relinquish responsibility for a child she doesn't want after birth, doesn't that remove the "undue burden."
Justice Samuel Alito asked, “What would you say to the argument that has been made many times by people who are pro-choice and pro-life that the line [of viability] really doesn’t make any sense…?” His point is that a woman has the same interest in being free of an unwanted pregnancy before viability as after, and the fetus has the same interest in life continuing before viability as after.
Justice Clarence Thomas asked the pro-abortion attorney what specific right the government is supposed to be protecting in keeping abortions after 15-weeks legal. "If I were to ask you what constitutional right protects the right to abortion? Is it privacy, is it autonomy? What would it be?”
Justice Brent Kavanaugh emphasized there are two competing interests at stake. The interest of the pregnant woman and the interest of the fetus. “And the problem... is that you can’t accommodate both interests. You have to pick. That’s the fundamental problem... One interest has to prevail over the other at any given point in time."
There are several ways the High Court could decide this case next summer. They overturn Roe and return things to the way they were before 1973, with each state making their own law. They could uphold the framework of Casey, and leave the prohibitions in place starting at viability. They could find, or create, another point in the pregnancy timeline to allow or restrict prohibitions. Or they could decide that so many laws rest on Roe, Casey etc., previous decisions that, even if wrongly decided, it would cause too much damage to the integrity of the court to overturn either Roe or Casey.
If they overturn Roe, abortion will not become "automatically illegal" in the U.S. Each state will determine when (or if) to allow abortions to be performed in their state. CA, NY and other "blue" states will continue allowing and funding abortions. Other states will ban it all together. But a majority of states will most likely allow abortions with restrictions up to some point. Either way, expect Congress to immediately try to pass a law establishing an actual right to abortion in the Constitution.