Due to strong opposition from pro-choice groups, the Supreme Court has just issued the Dobbs v Jackson Women’s Health Organization (19-1392) certificate. The case could prove to be a turning point for the Court on reproductive rights. The Mississippi law in question banned abortions after 15 weeks – seven weeks earlier than previous laws that passed constitutional muster. State lawmakers have passed laws like live torpedoes on water, and that law has just been passed by a 6-3 Conservative court.
The decision comes a year after pro-choice groups were able to make a plurality decision in June. Medical Services versus Russo (2020). This victory was only achieved because Ruth Bader Ginsburg was still on trial and Chief Justice John Roberts wrote a match in the result. However, Roberts’ approval was important to pro-choice proponents as well. He only voted with his liberal counterparts because he felt obliged to follow the 2016 decision in Whole Woman’s Health against Hellerstedt, which dealt with a practically identical law. He felt the recording did not allow him the flexibility his four Conservative colleagues found in voting for state law.
The concern for pro-choice groups is that, in that consensus, Roberts stated that “no one has asked the court to re-evaluate the constitutional validity of the unreasonable burden standard”. This case could afford such a review. The law was blocked by the United States Court of Appeals for the fifth circuit.
Obviously, all eyes will be on Justice Amy Coney Barrett, who, as an academic, wrote extensively on what she viewed as flawed in Roe’s descendants. As I wrote at the time, Barrett was the ultimate result for former President Donald Trump’s pro-life movement. In her confirmation, Judge Barrett had an interesting exchange with Senator Amy Klobuchar, D-Minn. in which she identified Brown versus Board of Education as such a precedent. However, when she pushed for Roe, she noted, “I answer a lot of questions about Roe that I think suggest Roe doesn’t fall into that category.” That led to an audible gulp of pro-choice groups.
It is also noteworthy that this case will be negotiated in October and could be decided by June 2022. Any major change in abortion standards would then come before the 2022 election to control Congress. It could also rekindle demands from the left to grab the Supreme Court.