Politics Roe redux: Is 'viability' still viable as a constitutional doctrine?
Conflict over abortion laws won't abate if Roe v. Wade falls
On both sides of America’s abortion debate, activists are convinced that Roe v. Wade — the 1973 Supreme Court ruling establishing a nationwide right to abortion — is imperiled as never before. Yet no matter how the current conservative-dominated court handles pending high-profile abortion cases — perhaps weakening Roe, perhaps gutting it completely — there will be no monolithic, nationwide change. Fractious state-by-state battles over abortion access will continue. Roe's demise would likely prompt at least 20 Republican-governed states to impose sweeping bans; perhaps 15 Democratic-governed states would reaffirm support for abortion access.
The Supreme Court is on the eve of arguments in what could be the most consequential abortion case in decades,. For years, many analysts overhyped cases as possible death knells for Roe v. Wade. Despite annual columns questioning such apocalyptic predictions, which often seemed more political than legal, the granting of Dobbs led me to write my first .
Dobbs has everything that you would need for a Roe-killing case. That does not mean the court will do so, but it could substantially reduce Roe's hold over states.
The End of the Viability Line
If the Supreme Court lets Mississippi ban abortion at 15 weeks, before fetal viability, much more than that will be lost.Viability, loosely understood as the moment at which a fetus can exist independently, has been the imperfect seawall blocking the tide of red-state abortion bans. For half a century, the Supreme Court has insisted that states cannot ban abortion before viability. States pass pre-viability bans as a matter of politics or aspiration, courts shut them down, and it’s all so obvious that the Supreme Court doesn’t even get involved. Until now.
The more interesting question is not whether Roe will go but whether "viability" is still a viable basis for limiting states on abortion legislation.
There is no constitutional question that has left more lasting, continuing divisions in society and on the court. This case has attracted thebriefs in the court's history (after leading same-sex marriage case in Obergefell v. Hodges and the ObamaCare ruling in NFIB v. Sebelius); the majority supports Mississippi in its ban on abortions after the 15th week of pregnancy.
Forty-eight years ago, the court held in Roe that "the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation." The court embraced a trimester system of escalating state authority, with little such authority in the first trimester but considerable authority - including possible bans - in the third trimester when a baby is viable outside of the womb.
Roe v. Wade has been the law of the land for nearly 50 years. Will that matter?
As much as some of the justices might wish they were writing on a blank slate, they cannot pretend they haven't dealt with Roe in numerous cases over the years. Equally important, several of the justices have at various times laid out the factors they weigh when voting to overturn precedent. How the court grapples with that question could illuminate the way forward for the court and its aggressive right flank as it grapples with other divisive topics in the future. Stare decisis In legalese, the doctrine the justices will consider on Wednesday is called stare decisis.
Then, in 1992, a deeply fractured court upheld the "essential holding" of Roe, but a plurality dispensed with the trimester approach in favor of the current "viability" standard. Under this approach, a state could protect the "potentiality of human life" through legislation once a fetus has reached viability "except where it is necessary ... for the preservation of the life or health of the mother." That line was viewed as around 23 or 24 weeks. (Thethat the United States is one of only seven out of the world's 198 countries that allow for abortions after the 20th week of pregnancy.)
Since then, abortion has remained a matter of deep divisions. Indeed, the late Justice Ruth Bader Ginsburg was a critic of Roe, seeing it as. She later blamed the case for .
To uphold Roe, the court likely will require more than the usual arguments of stare decisis, the doctrine that the court should generally stand by its precedents. Pro-choice members and advocates have insisted thatthat cannot be set aside like other cases. (Worth noting is that senators denouncing even the thought of overturning Roe as judicial activism have .)
Everyone Expects the Supreme Court to Uphold or Overturn Roe. But There’s Another Option.
The escape hatch from this abortion battle that terrifies conservatives.Each side of this showdown has generally framed Dobbs as a one-question test with a yes-or-no answer: Should the Supreme Court uphold or abolish the constitutional right to abortion before fetal viability? Each side agrees that the outcome lies in the hands of three justices who make up the center of this hard-right court: John Roberts, Brett Kavanaugh, and Amy Coney Barrett. Legal advocates have aimed every argument at this powerful new troika.
However, putting aside the very existence of such a special category of "super precedent," the court has never found terra firma on abortion. For roughly 50 years, it issued a litany of plurality or 5-4 decisions. For example, in 2000, a 5-4 majority struck down a partial-birth abortion law inbut, two years later, voted 5-4 to uphold a ban on partial-birth abortion.
Today, the country remains deeply divided. Polls show strong support for Roe in principle but also support for limiting it. For example, ashowed 2-1 support for Roe, but a greater number of respondents (37 percent) supported the 15-week limit in Dobbs than opposed it (32 percent).
This term the court was presented with two pre-viability challenges. After Dobbs was accepted with its 15-month limit, advocates sought to enjoin a Texas law that banned abortion after just six weeks. The courtto allow the Texas law to be enforced. The Biden administration returned to ask for an injunction from the same justices a few weeks later and for a ruling on the statute. , the justices did not enjoin the law but they could address it, either by putting it on the docket for a ruling on the merits or rendering it moot in a decision under Dobbs. In the meantime, this coming week the United States Court of Appeals will hear an expedited appeal on the Texas law in .
Abortion rights: Here are the two cases the Supreme Court could overturn
When the Supreme Court hears a constitutional challenge on Wednesday to a Mississippi ban on abortion after 15 weeks of pregnancy, the justices will start with the two seminal decisions that secured the abortion right for women. © Andrew Harnik/AP Barriers to separate activists are set up outside the Supreme Court building in Washington on Tuesday, November 30, 2021, ahead of arguments on abortion law at the court Wednesday. The decisions, in 1973 and 1992, laid down constitutional markers while describing in powerful terms the difficult issues at hand. In Roe v.
Abortion under ancient laws was treated as a criminal offense, and that status remained when our Constitution was written. The line drawn under many of these early laws was not viability but the "quickening." In writing Roe, Justice Harry Blackmun noted that "before 'quickening' - the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy - was not an indictable offense." The Mississippi law put the line along that earlier quickening stage.
Pro-choice advocates hope Chief Justice John Roberts and Justice Brett Kavanaugh can again be lured to the center to vote with the three liberal justices. Arguments over "super precedent" may have traction with Roberts, who is known as an institutionalist and incrementalist, uneasy about the court ordering transformative changes in society. Reversing Roe is the ultimate sticker-shock moment for Roberts. Yet, it was Roberts who wrote in: "We cannot embrace a narrow ground of decision simply because it is narrow; it must also be right."
Some justices are already on record questioning the constitutionality basis for Roe. Some of these justices do not agree with the sweeping privacy "penumbra" found in Roe. While he often sides with Roberts, Kavanaugh also said in(a non-abortion case) that the court cannot maintain a precedent that is "grievously or egregiously wrong." In the same case, : "The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents."
Supreme Court prepares to hear biggest abortion fight in decades
Nearly 50 years after Roe v. Wade, the future of abortion rights will face its most consequential test Wednesday.At the heart of the dispute before the high court, now with a 6-3 conservative majority, is a Mississippi law that bans abortions after 15 weeks of pregnancy. State officials have used the case, known as Dobbs v. Jackson Women's Health Organization, as a vehicle to ask the justices to overturn Roe v. Wade, the landmark 1973 decision that established a constitutional right to an abortion. Pro-abortion rights advocates warn a decision upholding the 2018 law would pave the way for states to ban the procedure entirely.
So how viable is "viability" if a majority of justices do not see a constitutional privacy basis for the right to abortion?
First, these justices will have to decide whether Roe was flawed from the start or whether, as argued by some, such views of unconstitutionality must be set aside due to historical reliance. Then, unless they overturn Roe entirely, they will have to return to the maddening task of drawing a line between the relative authority of a woman and the state - a line that has wavered between the quickening and viability.
Of course, the court could reaffirm Roe, which - with a six-conservatives majority - would likely mean Roe will remain good law for the foreseeable future. However, it also could abandon viability, or otherwise increase the right of states to place limitations on abortions in the pre-viability stage.
Justice Ginsburg once noted that "it's hard not to have a big year at the Supreme Court." That is true - but Dobbs would make for a historic year, if the court were to find the one thing that has long evaded it on reproductive rights: Clarity.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter.
What Roe Could Take Down With It .
The logic being used against Roe could weaken the legal foundations of many rights Americans value deeply.Many of the dangers of overruling Roe have been long discussed. If women lose the right to an abortion, pregnancy-related deaths are estimated to rise substantially and suddenly. (Currently, 26 states have so-called trigger laws on the books that would outlaw most abortions the moment the Court reverses Roe.) The impact of Roe’s fall would hit low-income women especially hard, as they’re five times as likely as affluent women to experience unplanned childbearing and twice as likely to face sexual violence.