The Supreme Court has announced that it will hear arguments on Dec. 1 challenging Mississippi’s Gestational Age Act, which prohibits almost all abortions after the 15th week of pregnancy. Dobbs v Jackson Women’s Health Organization (Dobbs is the name of Mississippi’s State Health Officer) is the case challenging the law whose enforcement is stayed during the court battle. The appeal was accepted by the Supreme Court in May to settle the question of whether abortion restrictions performed on pre-viable fetuses are constitutional.
Don’t be fooled by the Supreme Court’s recent refusal to strike down the Texas abortion law that recently went into effect. The Texas case (Whole Woman’s Health v. Jackson) concerned only whether the Supreme Court would grant an injunction without a trial to stop that law’s implementation, not a considered analysis holding the law permissible under the Constitution. Moreover, the current state of the law on abortion is pretty clear regarding pre-viability restrictions: They are not allowed.
Two landmark Supreme Court cases establish this — Roe v. Wade from 1973 and Planned Parenthood v. Casey from 1992. Roe set the legal precedent that abortion is a right guaranteed by the Constitution. Casey, meanwhile, established the two new major tenets of abortion law. First, any law placing an “undue burden” on abortion services is unconstitutional. Also, once a fetus can survive outside its mother’s womb, abortion can be regulated and possibly prohibited, except for concern for the mother’s life. The Supreme Court has not altered these precedents, but now that could change.
Viability Has Got to Go
Mississippi’s argument is that the viability standard in Casey must be abandoned. The viability standard was introduced in Roe, but the then more primitive means of understanding fetal development used the trimester system. States could not regulate first-trimester abortions much and could prohibit third-trimester abortions altogether. Second-trimester pregnancies held a middle ground, with more regulations allowed. Casey recognized that improved technology detached Roe’s trimester analysis from the science, so it established viability as a standard regardless of gestational age.
Mississippi’s brief argued:
“To begin, medical advances make viability itself a moving target. What Mississippi could not prohibit in 1973, it can prohibit today. And what Mississippi cannot regulate today, it will be able to regulate in the future. Given the many medical advances our scientific community is constantly achieving, it is only a matter of time before development of an artificial womb moves ‘viability’ all the way back to the moment of conception.”
Because the abortion law precedent currently prohibits implementation of the Gestational Age Act, Court-watchers presume justices took the case to make a change in the law. Why take a case to affirm a lower court’s ruling? Especially one challenging a landmark precedent. The most compelling reason would be to revisit a precedent with a mind toward changing it. The Supreme Court agreed to hear this case to answer the following question: Are all pre-viability prohibitions on elective abortions unconstitutional?
Read more from Scott D. Cosenza.