Dobbs v. Jackson Women's Health Organization

Dobbs v. Jackson Women's Health Organization
Supreme Court of the United States
Argued December 1, 2021
Full case name	Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women's Health Organization, et al.
Docket no.	19-1392
Argument	Oral argument
Questions presented
Whether all pre-viability prohibitions on elective abortions are unconstitutional.
Court membership
Chief Justice John Roberts Associate Justices Clarence Thomas · Stephen Breyer Samuel Alito · Sonia Sotomayor Elena Kagan · Neil Gorsuch Brett Kavanaugh · Amy Coney Barrett

Dobbs v. Jackson Women's Health Organization is a pending U.S. Supreme Court case dealing with the constitutionality of a 2018 Mississippi state law that banned abortion operations after the first 15 weeks of pregnancy. Lower courts had ruled in preliminary injunctions to prevent enforcement of the law on the basis that the law violated the holding of women's rights in Planned Parenthood v. Casey, which generally allows a woman to opt for abortion within the first 24 weeks. Oral arguments were held in December 2021, with a decision expected by the end of the 2021–22 term.

Background[]

The Supreme Court ruled in the landmark decision of Roe v. Wade, 410 U.S. 113 (1973) that a woman has a constitutional right to obtain an abortion without state interference within the first trimester of her pregnancy. Almost two decades later, the Supreme Court reaffirmed a woman's right to obtain an abortion in the landmark case Planned Parenthood v. Casey, 505 U.S. 833 (1992) but struck down the previously established trimester framework in favor of a fetal viability standard, typically 24 weeks into pregnancy. Casey ruled that state laws that restricted abortion before the fetus was viable, creating an "undue burden" on women seeking abortions, were unconstitutional as they violated a woman's right to due process under the Fourteenth Amendment. However, the court also ruled that this right was not absolute and must be balanced with other considerations the state may have such as advancements in technology making the point of fetal viability become sooner over time.^[1]

Since then, conservative states have attempted to pass other laws to restrict abortion within the context of Planned Parenthood v. Casey, generally on reassessment of when fetal viability begins as to restrict abortions earlier than Planned Parenthood v. Casey's general standard of 24-weeks. Most of these laws have been struck down as being overly restrictive against women's rights by using 24-weeks as an absolute standard (See Abortion in the United States § Later judicial decisions).^[2] The use of fetal viability as a standard for when states may restrict abortion operations has been questioned in legal cases since, including in the dissenting opinion of City of Akron v. Akron Center for Reproductive Health by Justice Sandra Day O'Connor, as these case opinions identify that there are other scientific, philosophical, and moral considerations that are beyond the scope of the jurisdiction of the court system.^[1]

There had been increased pressure in these states for further abortion restriction bills after October 2020, following the death of Supreme Court Justice Ruth Bader Ginsburg and the appointment of her replacement, Justice Amy Coney Barrett. Whereas Ginsburg had been generally in the majority of past Supreme Court cases to block stricter abortion laws, Barrett is seen by some as having anti-abortion views, giving the Court a different ideological makeup with respect to abortion rights and creating a potential vehicle to change Roe v. Wade.^[2][3][4] At least 22 states with Republican leadership had passed or were in the process of passing strong anti-abortion bills when the current case was certified by the Supreme Court in May 2021, with the intent that these bills would likely be met with lawsuits and thus serve as legal vehicles to bring a challenge to Roe v. Wade to the Supreme Court. Most of these laws that have been passed have been enjoined from enforcement by courts, but would become effective should Roe v. Wade be overturned.^[5]

Lower courts[]

In March 2018, the state of Mississippi passed the Gestational Age Act, which banned any abortion operation after the first 15 weeks of pregnancy, with exceptions for medical emergencies or severe fetal abnormality, but did not include any exceptions for cases of rape or incest. Governor Phil Bryant signed the bill into law, saying, "I am committed to making Mississippi the safest place in America for an unborn child, and this bill will help us achieve that goal."^[6] He further stated on signing that "We'll probably be sued here in about a half hour, and that'll be fine with me. It is worth fighting over."^[6]

Within a day of passage, the sole remaining abortion clinic in the state, Jackson Women's Health Organization, sued the state challenging the constitutionality of the bill.^[6] The Center for Reproductive Rights supported the clinic in its legal defense.^[7] The case was heard by Judge Carlton W. Reeves of the United States District Court for the Southern District of Mississippi. In November 2018, Reeves ruled for the clinic and placed an injunction on the state enjoining them from enforcing the Act. Reeves stated that based on evidence that viability of the fetus begins between 23 and 24 weeks, Mississippi had "no legitimate state interest strong enough, prior to viability, to justify a ban on abortions."^[7] The state appealed to the Fifth Circuit, which upheld Reeves' ruling in a 3–0 decision in December 2019. Senior Circuit Judge for the Fifth Circuit Patrick Higginbotham wrote in his opinion, in upholding Roe v. Wade, that "States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right, but they may not ban abortions."^[8] A request for an en banc rehearing was denied.^[9]

In February 2019, a few months after upholding the injunction on the Gestational Age Act ruling, in a per curiam decision, the Fifth Circuit also upheld an injunction against a second Mississippi abortion law which was aimed to block abortions at the detection of a fetus's heartbeat, which nominally could be from 6 to 12 weeks into pregnancy (a so-called heartbeat bill). The injunction has also been issued by Reeves in May 2019.^[10] The Fifth Circuit's rationale followed similar rationale to the injunction against the Gestational Age Act: while it is true that a fetal heartbeat can happen as early as six weeks into term, this is still well before the fetus could be considered viable. The Circuit Court opinion wrote "If a ban on abortion after 15 weeks is unconstitutional, then it follows that a ban on abortion at an earlier stage of pregnancy is also unconstitutional".^[11]

Supreme Court[]

The state petitioned their appeal of the Fifth Circuit decision to the Supreme Court in June 2020. Their petition focused on multiple questions from the appeals process. The petition had gone through review at more than a dozen conferences for the Court, which is unusual for most cases. The Court granted certiorari to the petition on May 17, 2021, limiting the case to the single question "Whether all pre-viability prohibitions on elective abortions are unconstitutional."^[12][13]

The case was heard on December 1, 2021. Court observers said, based on their analysis of the questioning, that the six conservative members of the court were likely to find in favor of upholding Mississippi's law, though Chief Justice John Roberts appeared to support a solution that upheld the fundamentals of Roe v. Wade and Planned Parenthood v. Casey, while giving states the right to set restrictions on abortions up to as early as 15 weeks. The other conservative Justices appeared to be set to overturn Roe and Casey, based on these observations.^[14][15][16]

Impact[]

While Dobbs already had drawn interest as the first abortion-related case following the death of Ruth Bader Ginsburg and appointment of Amy Coney Barrett in her place, placing six conservative justices on the bench, the case drew even more attention following the enactment of the Texas Heartbeat Act on September 1, 2021 along with the Supreme Court's denial to move to block enforcement of the law while it was undergoing a legal challenge via Whole Woman's Health v. Jackson and United States v. Texas. The Texas Heartbeat Act made abortions after the sign of fetal heartbeat - typically six weeks after pregnancy - illegal, but as to work around Roe v. Wade, the law is not enforced by the state but gives any citizen the right to sue in state court anyone that assists or enables those that perform these abortions. Oral arguments for both cases were made on November 1, 2021, where observers of the Supreme Court said that the Court was focused on the aspects of standing rather than addressing the abortion issue directly.^[17] The Texas law is highly controversial, and as a result, numerous additional briefs were filed to Dobbs most supporting the abortion clinics' position. Over 1,125 friend-of-the-court briefs had been filed in Dobbs by mid-September 2021.^[18]

Separately, Georgia had passed House Bill 481 in 2019, which banned abortions after six weeks. The law was challenged and deemed unconstitutional under Roe v. Wade in October 2019 by the United States District Court for the Northern District of Georgia. The state challenged this ruling to the Eleventh Circuit, but due to Dobbs being scheduled for December 2021, the Circuit Court issued a stay of review until after the Supreme Court had decided Dobbs.^[19]

References[]

Further reading[]

• Girgis, Sherif (2021). "Two Obstacles to (Merely) Chipping Away at Roe in Dobbs". Notre Dame Law School. SSRN 3907787. Cite journal requires |journal= (help)

External links[]

• "HOUSE BILL NO. 1510 "Gestational Age Act" as sent to the Governor - MISSISSIPPI LEGISLATURE REGULAR SESSION 2018" (PDF). www.legislature.ms.gov.