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Supreme Court justices could overturn Roe v. Wade over one word

A lot of time was spent talking about the word 'viability' during oral arguments. It's something that should worry abortion advocates.
Julie Rikelman for respondents in the Dobbs v. Jackson Women's Health arguments in the Supreme Court of the United States in Washington, D.C., on Dec. 1, 2021.
Oral arguments in the Dobbs v. Jackson Women's Health Supreme Court case on Wednesday. Art Lien

On Wednesday, the Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization — the first frontal, explicit challenge to Roe v. Wade in almost 30 years. Roe is the 1973 decision holding that women have a constitutional right to decide to have an abortion before viability, usually around 24 weeks. The last time the court was asked to overrule Roe, in Planned Parenthood of Southeastern Pennsylvania v. Casey, it reaffirmed women’s right to decide when and whether they have children.

The court is likely to dramatically reshape the law governing abortion in ways that will make it more difficult for women to obtain abortion care.

But this is a very different court than the one that decided Casey in 1992, and if oral argument is any indication, the court is likely to dramatically reshape the law governing abortion in ways that will make it more difficult for women to obtain abortion care.

Dobbs v. Jackson Women’s Health Organization involves a challenge to a 2018 Mississippi statute that was blocked by lower federal courts. That law prohibits abortions more than 15 weeks after a person’s last period. Under Roe and Casey, the law is concededly unconstitutional. Casey reaffirmed that the “central holding” of Roe v. Wade is that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”

Mississippi is therefore pressing two arguments, both of which would allow states to dramatically curb access to abortion.

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The first argument is the most direct challenge to Roe and Casey: Mississippi devoted most of its brief to urging the court to overrule those decisions, which would then allow states to ban abortions with only the most limited exceptions.

The second argument, however, is no less significant, even though it superficially looks more modest. Mississippi alternatively asked the court to overrule Roe and Casey only in part — to eliminate the so-called viability line. The idea is that before viability, states cannot take away from women “the ultimate decision” about whether to have abortions. Were the court to overrule the viability line, it would be overruling the legal standard from Casey and the “central holding” of Roe v. Wade. And it would result in a new set of questions about how far before viability, short of a ban throughout pregnancy, states could prohibit abortion.

That question is no academic matter. In the last several years, states have sought to ban abortions after six weeks from a person’s last period, eight weeks, 10 weeks, 12 weeks and so on. Based on the idea that states cannot fully prevent abortions before viability, courts have had no difficulty invalidating those laws. But if the court tells states they may ban abortion at some points before viability, the constitutionality of those laws will be less clear.

Take Texas’ notorious abortion law, Senate Bill 8, which prohibits abortion providers from performing abortions when there is detectable cardiac activity (a point that often occurs around six weeks after a person’s last period). At that time, many women may not know they are pregnant. Even if a woman quickly determines she is pregnant, she may have difficult scheduling an abortion procedure within the limited time window (in part because she must undergo Texas’ mandatory counseling and waiting periods, but also because of limited access to the abortion procedure). And of course, many women may simply need more time to make this difficult decision. Additionally, neither Texas’ nor Mississippi’s laws contain an exception for victims of rape or incest.

Relying on the idea that states can prohibit abortions at some point before viability, Texas has argued that S.B. 8 might ultimately be constitutional. Inits papers to the district court, Texas argued the law merely “shift[s] the time at which some abortions occur” and is therefore not a “ban” on all abortions, full stop.

Were the court to embrace Mississippi’s second, alternative argument, that states can prohibit some pre-viability abortions, the landscape of reproductive rights and justice would shift dramatically. Suddenly, the question would become “At what point — six weeks, eight weeks, 10 weeks or 12 weeks — after a person’s last period can states prohibit abortion?” In the hands of state legislatures committed to eradicating abortion access, and federal appeals courts stacked with judges nominated to do the same, abortion access will be dramatically curbed — and effectively and practically unavailable to many women. Clinics will close. States will have accomplished what overruling Roe in its entirety would allow them to do: eliminate abortion access in many states.

During oral arguments, Chief Justice John Roberts appeared particularly interested in revisiting the viability line. He noted that the author of the Roe v. Wade majority opinion, Justice Harry Blackmun, had said in private papers that the viability line was arbitrary.

But Roberts’ more conservative colleagues seemed more interested in entirely overruling Roe.

Justice Clarence Thomas argued, as he has before, that the Constitution’s text does not protect the right to an abortion. “What specifically is the right here that we're talking about?” he asked.

Justice Samuel Alito noted that the providers insisted that erasing the viability line would be equivalent to overruling Roe, almost as if to suggest the court should just go the full distance. Justices Neil Gorsuch and Brett Kavanaugh argued that stare decisis — respect for precedent — is not so important given that the court frequently divides on abortion cases and that the court frequently overrules cases. And Justice Amy Coney Barrett, shockingly, seemed to suggest Roe and Casey were no longer needed because safe haven laws (which aim to protect abandoned newborns) allow women to choose not to be a parent — even though women would still have to endure unwanted childbirth and full pregnancy terms with all of the risks those entail. (According to the lawyer for the abortion clinic, women face a 75 times greater risk of death from childbirth than from a pre-viability abortion in Mississippi.)

In her opening statement, U.S. Solicitor General Elizabeth Prelogar told the court the Supreme Court “has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society.”

But there is a first time for (almost) everything, and Dobbs may be it.