(National Review) The U.S. Supreme Court handed down four decisions this morning, but the big headliner was an abortion case the Court agreed to hear in the fall. While that case appears unlikely to settle the 48-year war over the constitutional status of abortion, it offers the first opportunity to witness the 6–3 majority of George W. Bush and Donald Trump appointees in action on the abortion issue. And because the case involves a direct ban on some abortions, rather than a regulation, it potentially puts the entire edifice of Roe v. Wade in the crosshairs.
Dobbs v. Jackson Women’s Health Organization is one of three new cases the Court took this morning for next term, all of which will probably be argued in the fall and decided some time in the spring of 2022 (the other two involved arbitration awards and habeas corpus review of criminal convictions). Dobbs could be the Court’s most momentous abortion case since at least Gonzales v. Carhart (the last partial-birth-abortion decision) in 2007, and maybe since Planned Parenthood v. Casey in 1992.
My colleague Ed Whelan has argued that Dobbs itself would be “an excellent vehicle for overruling Roe” following the addition of Justice Amy Coney Barrett to the Court. He’s not wrong, and if the Court were solely concerned with getting the law right, it would avail itself of that vehicle. But we shouldn’t expect Dobbs to be the case in which Roe falls. More likely, the Court could start cracking open the internal contradictions in its prior abortion jurisprudence, paving the way for more dramatic progress later — much in the way that the Court’s liberals used decisions striking down sodomy laws and the federal Defense of Marriage Act to lay the legal groundwork for overturning state bans on same-sex marriage. If Chief Justice John Roberts and some of the other Republican appointees on the Court are not on board with that campaign, we will know from their opinions in Dobbs.
READ: Mississippi’s 15-week abortion ban to be heard by Supreme Court
Recall that Roe, based on the medical science of 1973 (as understood by Justice Harry Blackmun) and without regard for anything written in the Constitution, originally divided pregnancy into trimesters for the purposes of abortion jurisprudence. First-trimester abortions were absolutely protected from state law under Roe, and states were able to regulate but not ban second-trimester abortions. Casey, written 19 years later, undermined the increasingly arbitrary trimester framework by shifting the focus to when the unborn child becomes viable to live outside the womb — itself a line that modern medicine has been moving back with advances in care for premature births — and reorienting the main thrust of abortion law around what regulations place an “undue burden” on abortions. The Casey standard also has nothing to do with the Constitution. In practice, it effectively asks courts to use their own judgment to decide whether restrictions on abortion have been too effective.
The Dobbs Case
A number of states have recently been passing “heartbeat bills” that protect the unborn from the moment they have a detectable heartbeat, typically around six weeks into pregnancy. The Court has yet to squarely rule on the constitutionality of such bills, but the law at issue in Dobbs (Mississippi’s Gestational Age Act, which was placed on the books in 2018) is more modest: It bans abortions after 15 weeks except “in a medical emergency or in case of a severe fetal abnormality.” Fifteen weeks is in the second trimester; even the abortion clinic that sued to enjoin the law claims to provide abortions only up to 16 weeks.
While violations of rights actually written in the Constitution sometimes take years to enforce, a federal district judge in Mississippi issued an injunction against the Gestational Age Act the day after the law passed, and the United States Court of Appeals for the Fifth Circuit upheld the injunction. By contrast, the Court has kept the Dobbs petition itself hanging around for nearly a year just to decide whether to take the case.
The Fifth Circuit, in Dobbs, concluded that it did not need to engage in any sort of analysis of the burdens or benefits of the Mississippi law because it involves a ban, not a regulation, of pre-viability abortions, and because it bans such abortions entirely rather than banning a specific method of performing them, as in the law at issue in Gonzales. As the court concluded: “No state interest is constitutionally adequate to ban abortions before viability.”
Even Trump appointee James Ho reluctantly joined the Fifth Circuit’s judgment, noting that “nothing in the text or original understanding of the Constitution establishes a right to an abortion,” but agreeing with the rest of the panel that the Fifth Circuit was bound to follow Casey so long as it remained a Supreme Court precedent. Judge Ho pointed out that Mississippi had justified its law as preventing “barbaric” abortions that inflict pain on the unborn, but while “avoidance of pain is indeed a valid state interest in the abortion context,” it was foreclosed from the analysis by Casey: “The Court ultimately fixed the line at viability, not pain. Because Casey establishes viability as the governing constitutional standard, I am duty bound” to strike down the law without even examining evidence about pain. Even then, Judge Ho criticized the pro-abortion biases of the district judge in refusing to allow discovery so Mississippi could build a record of evidence from which to argue for a change in the law.
Questions Presented and Burdens Weighed
When the Supreme Court decides cases, it typically frames particular legal questions for decision — one or more questions presented in the petition to the Court, or on occasion, one or more questions rephrased by the Court after reading the petition. The sweeping nature of the Fifth Circuit’s decision may help explain why the Court agreed to take only the first question presented in Dobbs.
In the first question, the petition in Dobbs asked the Court to decide “whether all pre-viability prohibitions on elective abortions are unconstitutional.” If the answer to that question is yes, the Fifth Circuit was right to go no further. If the answer is no, then there needs to be a new standard, maybe just the Casey “undue burden” test. The Court might announce one, or it might send the case back to the lower courts to work that out.
A side debate in “undue burden” cases has been whether courts are supposed to balance the benefits and burdens of a law, or just decide whether it imposes too much burden. In the 2016 case Whole Woman’s Health v. Hellerstedt, a 5–3 majority consisting of the four liberals and Justice Anthony Kennedy introduced a balancing test. Judicial defenders of abortion tend to prefer balancing tests, which give judges even more discretion in deciding what looks like “too much.” Then again, in the hands of conservative judges, a balancing test could just as easily favor states presenting evidence about fetal pain and fetal heartbeats. Open-ended discretion for judges may have driven Antonin Scalia up the wall for undermining “the rule of law as a law of rules,” but it can always cut both ways.
READ: 18 state AGs ask Supreme Court to uphold Mississippi’s 15-week abortion ban
The second question presented in the Dobbs petition was what standard to use if the Court finds that the law is not per se unconstitutional: the Casey “undue burden” test or the Hellerstedtbalancing test. That question has been a matter of recent intrigue at the Court. It was last before the Court in June Medical Services L.L.C. v. Russo, which resulted in a 5–4 decision handed down in June 2020, two weeks after the Dobbs petition was filed. Chief Justice Roberts –— who dissented in Hellerstedt but became the Court’s swing vote on abortion after Justice Brett Kavanaugh replaced Kennedy — did a bizarre two-step to side with the Court’s four liberals in June Medical.
Roberts did so on the theory that Hellerstedt had to be followed because it was a precedent. But instead of joining Justice Breyer’s opinion applying the reasoning of Hellerstedt, Roberts argued that the Casey standard was still the law, with no balancing test. “The upshot of Casey is clear,” he wrote. “The several restrictions that did not impose a substantial obstacle were constitutional, while the restriction that did impose a substantial obstacle was unconstitutional.” So, while Roberts voted in favor of the precedent containing the balancing test, he continued to insist that the balancing test had no place in the law:
In this context, courts applying a balancing test would be asked in essence to weigh the State’s interests in “protecting the potentiality of human life” and the health of the woman, on the one hand, against the woman’s liberty interest in defining her “own concept of existence, of meaning, of the universe, and of the mystery of human life” on the other [quoting Justice Kennedy in Casey]. There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. Attempting to do so would be like “judging whether a particular line is longer than a particular rock is heavy” [quoting Justice Scalia]. Pretending that we could pull that off would require us to act as legislators, not judges. . . . Nothing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts. On the contrary, we have explained that the traditional rule that state and federal legislatures have wide discretion to pass legislation in areas where there is medical and scientific uncertainty is consistent with Casey. [Quotations and citations omitted.]
The five-justice majority from June Medical is very much in doubt now, with Barrett having replaced Justice Ruth Bader Ginsburg. If Barrett joins the four June Medical dissenters to reverse the Fifth Circuit in Dobbs, that will force Roberts to make a choice: Unless he joins the majority, the opinion will be written or assigned by Justice Clarence Thomas, who doubtless would prefer to move more aggressively than the chief justice wants a 5–4 majority to move against the entire illegitimate Roe regime.
It would be strange for the Court to take on Dobbs without trying to clarify the proper standard to apply. As Whelan notes, the Court may simply think that the pre-June Medical framing of the question is obsolete, in which case it could still hand down a ruling that announces a new standard. Or, it could just tell the Fifth Circuit that no absolute rule protects pre-viability abortions from the reach of the law, and leave the case to continue with the 2018 law most likely still suspended. That result would almost certainly set the stage for Dobbs or another case concerning the same issue to make its way back to the Court later on — maybe this time with a fuller evidentiary record. But if that happens, a great many lives will be irreparably lost to abortion in the meantime.
The wheels of justice grind slowly, and not everyone lives to see justice done.
Editor’s Note: This article was published at National Review and is reprinted here with permission.
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