On December 1, the United States Supreme Court heard oral arguments in the case of Dobbs v. Jackson Women’s Health Organization. At issue is Mississippi’s Gestational Age Act which prohibits abortions after 15 weeks of pregnancy “except in medical emergency and in cases of severe fetal abnormality.” Despite those exceptions, the law has been billed as a “near-total ban on abortion,” leading to considerable media attention for the case because it runs so directly at the Supreme Court’s previous abortion holdings. According to courts observer Amy Howe, Justice Clarence Thomas and “at least four of [his] current colleagues are inclined to uphold the law.”
Ask the average person on the street about abortion and if they know the name of any Supreme Court case it’s likely to be Roe v. Wade. Despite its notoriety, however, it is not Roe but the 1992 case of Planned Parenthood v. Casey that has imposed the Supreme Court’s abortion doctrine on the United States for nearly the last 30 years. In Casey the Court replaced the so-called “trimester framework” of Roe with the new “undue burden” standard. In the decades since then, the standard has proven notoriously hard to understand and apply by legislatures and lower courts. If anyone wants a deeper dive into the legal relationship between Roe and Casey, there’s a good summary (albeit one that seems sympathetic to the pro-abortion argument) at the Volokh Conspiracy. If you really want to know just how truly horrible Casey is, I highly recommend Professor Michael Paulsen’s very readable law review article, “The Worst Constitutional Decision of All Time.”
I was able to listen to parts of the oral arguments for myself (only parts because they were held on a weekday morning and because I could only stomach so much of the pro-abortion nonsense being spouted). Although I suspect we disagree on the underlying issue of abortion itself, I tend to agree with Sherif Girgis (in the Volokh article above) on at least this point: “I think the Court will go all or nothing in Dobbs.”
For decades, those who have fought against the holocaust of the unborn have been chipping away at the edges of Casey/Roe: age limits, mandatory ultrasounds, hospital admitting privileges, etc. As noted above, Mississippi has taken a much more direct approach in this case; if calling it a “near-total ban” is hyperbole, it’s not quite as far from the truth as pro-abortion rhetoric so often is. Lawyers can argue over whether requiring an abortion mill to have hallways that are at least a certain width is an “undue burden,” but there’s really not much room for argument when it comes to what Mississippi has done in banning all abortions (with supposedly limited exceptions) before the point at which everyone seems to agree that the unborn child could not survive outside the womb (even with the most advanced medical care available).
Chief Justice Roberts has shown himself to be a veritable judicial Gumby when it comes to high-profile cases that might affect the Court’s “reputation” (as witnessed by some of his questions during oral arguments), but if Girgis is right, even Roberts cannot convincingly jam Mississippi’s square peg of a law into the round hole of Casey’s “undue burden” standard. It just won’t fit, no matter how many times the black-robed priests of the judicial supremacy cult chant the incantation of “stare decisis.”
Thus, Dobbs is truly an all-or-nothing proposition. For better or for worse, the pro-life movement has put all of its eggs into this basket. Either the Court will overrule Casey/Roe and send the issue of abortion back to the states, or Professor Paulsen will have to rewrite his 2003 article to update it with a new “Worst Constitutional Decision of All Time.”