By: Paulina Eugenia Buitrago Cueto[*]
Published: January 23, 2022
In a hotly anticipated decision, the United States Supreme Court is set to decide on the constitutionality of a Mississippi law that bans most abortions after 15 weeks.[1] This decision could overrule Roe v. Wade, thereby subjecting women to more limitations to abortion or even to a prohibition on abortion altogether.
Roe v. Wade,[2] the first Supreme Court decision regarding the constitutional right to abortion services, established a pre-viability standard, under which access to abortion cannot be limited prior to the viability of the fetus.[3] Roe’s protection was further developed by later Supreme Court decisions, including Planned Parenthood v. Casey,[4] where the Court upheld Roe and ruled that before fetal viability, states may not ban abortion nor impose any undue burden on the right to abortion,[5] and Webster v. Reproductive Health Services,[6] where the Court upheld a Missouri statute that required doctors to test the viability of fetuses that are 20 weeks or older prior to abortion.[7]
However, the rules around abortion are again before the Court in Dobbs v. Jackson Women’s Health Organization,[8] reviewing a challenge to a Mississippi law that makes most abortions after 15 weeks of pregnancy illegal,[9] which is “about two months earlier than Roe and later decisions allow.”[10] Oral arguments were held in December 2021, and a decision is expected in June 2022.[11] There are few, if any, decisions expected this term that are as anticipated as Dobbs, as many suspect that its outcome will significantly shift the legal framework in abortion laws, impacting a huge portion of the population.
Beyond the pure quantity of individuals that will be affected by the decision, there is also a concern of the disparate impact that restriction to abortion services would have on women of lower socioeconomic status.[12] History has shown that banning abortion does not eliminate abortion; bans only push abortion into the shadows with safe access only for the wealthy.[13] For example, statistics show that women with low socio-economic status in Mississippi “are more likely to obtain an abortion after the first 12 weeks, or later in pregnancy.” [14]
To understand the practical impact this decision could have, imagine pregnancy as being separated by a clearly ascertainable line between pre-viability and viability.[15] Under the current standard from Roe and Casey, states can regulate abortion procedures that take place during the pre-viability phase but cannot impose an undue burden to the women’s right to abortion and cannot ban abortion outright.[16] In Dobbs, the question presented is “[w]hether all pre-viability prohibitions on elective abortion are unconstitutional.”[17] Accordingly, the Court’s decision will likely either support the new Mississippi abortion law (which contains a pre-viability prohibition on elective abortion) and consequently overrule Roe and related caselaw or continue to uphold Roe’s nearly fifty-year precedent and declare the Mississippi law unconstitutional.
Roe v. Wade’s impact on abortion law was revolutionary. So much so that its holding required forty-six states to change their laws on the subject.[18] And although a woman’s right to choose has been the law of the land for nearly fifty years, some fear that an overruling of Roe might encourage states to make women’s access to abortion harder or to even ban abortion altogether.[19] Considering states’ repeated efforts to restrict abortion access even while Roe is still good law,[20] one can hardly find the fear unfounded.
In summary, the Supreme Court will likely decide Dobbs in one of three ways. First, the Court could reaffirm Roe v. Wade and other precedent by holding that all pre-viability prohibitions on elective abortion are unconstitutional. Second, the Court could completely overrule Roe v. Wade and other precedent by holding that all pre-viability prohibitions on elective abortion are constitutional. Third, the Court could overrule Roe v. Wade in part by holding that some pre-viability prohibitions on elective abortion are unconstitutional, creating a new standard of constitutionality—such as moving the pre-viability line to an earlier moment in pregnancy.
The approach that the Supreme Court will adopt is impossible to fully predict. However, a part of the public opinion—understandably—fears that Roe will be overruled. Based on the oral arguments heard in December 2021, commentators suggested that “the Supreme Court seemed poised to uphold the Mississippi law.”[21] Any other outcome would appear to be a herculean task, given the current composition of the Court after Justice Kennedy’s retirement in 2018[22] and Justice Ginsburg’s passing in 2020.[23] In short, it appears that Roe’s only hope hinges on either two conservative Justices voting to strike down the Mississippi law or Chief Justice Roberts securing a plurality by attracting at least two votes in favor of upholding the Mississippi law without overruling Roe, a narrow holding that does not seem to be popular amongst the justices.[24]
Footnotes
[1] See Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. argued Dec. 1, 2021).
[2] Roe v. Wade, 410 U.S. 113 (1973).
[3] See id. at 163–64.
[4] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).
[5] See id. at 878.
[6] Webster v. Reprod. Health Servs., 492 U.S. 490 (1989).
[7] See id. at 519–20.
[8] Dobbs v. Jackson Women’s Health Org., No. 19-1392 (U.S. argued Dec. 1, 2021).
[9] Miss. Code. Ann. § 41-41-191(4) (West 2022).
[10] Adeel Hassan, What to Know About the Mississippi Abortion Law Challenging Roe v. Wade, N.Y. Times (Dec. 1, 2021), https://nyti.ms/31J5FEw.
[11] See Mark Sherman and Jessica Gresko, With Roe in Question, Justices Dig Into Private Debate, Associated Press (Dec. 2, 2022), https://bit.ly/3FDLwO6.
[12] See, e.g., Bracey Harris, Women in Poorer Areas in Mississippi Seek Abortions Later in Pregnancy, Study Finds, NBC (Jan. 7, 2022), https://nbcnews.to/32YHaUJ.
[13] See Roe v. Wade: the Constitutional Right to Access Safe, Legal Abortion, Planned Parenthood, https://bit.ly/3514t0D (last visited Jan. 22, 2022).
[14] Harris, supra note 12.
[15] In actuality, the viability of a fetus differs with each pregnancy and is constantly evolving with the latest scientific information. See When Is It Safe to Deliver Your Baby?, Univ. of Utah Health, https://bit.ly/33hR83H (last visited Jan 22, 2022).
[16] See Planned Parenthood v. Casey, 505 U.S. 833 (1992).
[17] Petition for a Writ of Certiorari, Dobbs v. Jackson Women’s Health Org., No. 19-1392, 2020 WL 3317135, *i (June 15, 2020).
[18] Roe v. Wade (1973), Legal Info. Inst., https://bit.ly/3qdvsyd (last visited Jan. 22, 2022).
[19] See Robert Barnes, Mississippi Abortion Law Would Open Door to Extensive Bans, Providers Tell Supreme Court, Wash. Post (Sept. 13, 2021, 5:00 PM), https://wapo.st/3r2NZfW.
[20] See e.g., Miss. Code. Ann. § 41-41-191(4) (West 2022); Tex. Health & Safety Code Ann. § 171.204(a) (West 2022).
[21] Hassan, supra note 10.
[22] Jacob Pramuk and Marty Steinberg, Anthony Kennedy Retiring From Supreme Court, CNBC (June 28, 2018, 10:09 AM), https://cnb.cx/3tfklXi.
[23] Nina Totenberg, Justice Ruth Bader Ginsburg, Champion Of Gender Equality, Dies At 87, NPR (Sept. 18, 2020, 7:28 PM), https://n.pr/3nvX6Vg.
[24] See Hassan, supra note 10.
About the Author
Paulina Buitrago is a Master of Laws candidate at Penn State Law. Originally from Colombia, Paulina received her Bachelor of Laws degree from the Universidad del Norte law school in Barranquilla (Colombia). She has worked as a research assistant to several academic papers related to Public Interest Law, State Liability, and Human Rights, amongst others. Additionally, she was the Assistant Editor of the Universidad del Norte’s Law Journal. During her Bachelor of Laws degree, Paulina was part of the Dean’s List, was included on the Law Clinic’s honor roll, and graduated as one of the top of her class.
Suggested Citation: Paulina Eugenia Buitrago Cueto, Against the (Uterine) Wall: The Latest Challenge to Roe v. Wade, Penn St. L. Rev.: F. Blog (Jan. 23, 2022), http://www.pennstatelawreview.org/the-forum/against-the-uterine-wall-the-latest-challenge-to-roe-v-wade/.