The Jackson Women's Health Organization, Mississippi's only abortion clinic, has asked the United States Supreme Court to overturn the state's 2018 law banning abortions after 15 weeks of pregnancy, setting the stage for a momentous showdown on Roe v. Wade, the 1973 decision that legalized abortion nationwide.
Both parties in Dobbs v. Jackson Women’s Health Organization have laid out their legal strategies. The Supreme Court will hear oral arguments in this case during its fall session, which begins October 4.
What's at Stake
The constitutionality of the Mississippi law is the main issue before the court, but both sides say the law is intended as a direct challenge to Roe v. Wade and the ruling that upheld the central argument 18 years later, Planned Parenthood v. Casey.
In its brief, the State of Mississippi explicitly asks the court to overturn Roe, arguing that “the conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.”
The parties' arguments focus on two points: the legal doctrine known as stare decisis, that legal precedents should not be easily overturned for fear of undermining the rule of law, and the concept of the “viability” of the fetus, i.e., the point at which a baby can survive outside the womb.
Citing Roe and Casey, courts have repeatedly rejected state efforts to restrict abortion before viability, ruling them unconstitutional. But in the Dobbs case, the State of Mississippi argues that the Supreme Court's standard of viability - around 24 weeks in a pregancy - is scientifically outdated and legally unenforceable.
In their amicus curiae brief, jurists Mary Ann Glendon and O. Carter Snead argue that the principle of stare decisis obliges the Court to overturn Roe and Casey, as this would protect the Court’s integrity. (The expression amicus curiae, friend of the court, designates the persons who the court can hear without formalities in order to seek elements suitable to facilitate information.)
“Indeed, there are not five justices on the Supreme Court now who agree on what these precedents require,” Snead wrote. “Moreover, they have caused grievous real world harms; there have been more than 60 million abortions because of these lawless, anti-democratic, incoherent precedents.”
Conversely, Jackson Women's Health claims that Mississippi is re-litigating the Casey case, according to which a woman's “liberty interest” is stronger than the state's interest in protecting the life of the fetus before a baby is viable.
Their brief states that “no changed factual circumstances related to viability exist on this record.” Jackson Women’s Health concludes that the sustainability line must be maintained because it is the only standard that can be consistently applied by the courts.
To counter this claim, an amicus curiae brief was filed by a group of women obstetricians and gynecologists and the Catholic Association Foundation. This brief calls the viability standard set by Roe and Casey as “outdated according to current science,” adding that “’viability’ no longer means what it did at the time of Roe and Casey.”
The Real Issues
What is at issue: “a tiny boy or girl who, at 15 weeks, kicks, breathes and hiccups, who has little fingers that open and close—and who has undeniably ‘assumed taken on the human form.’”
“The legal standard, set forth in Gonzales v. Carhart (upholding the constitutionality of the federal partial-birth abortion ban act), is that where there is a disagreement between scientific experts, the state is free to legislate according to its best judgment,” Snead explains.
“There does not need to be unanimity among the experts for a state to legislate in a contested area,” he added.
“But the deeper point here is that, because this is an area of scientific and medical disagreement, the Supreme Court lacks the institutional competence to serve as the nation’s ad hoc medical review board of last resort,” he concluded.
It is obviously unfortunate that the assertion that human life must be protected from conception is not made and defended. But to achieve this goal, it is necessary to remove the obstacles. If Roe and Casey were canceled, a big step in that direction will have been taken.