Could the Supreme Court Erode But Not Overrule Roe v. Wade in the Mississippi Case?

Posted in: Reproductive Law

Last week, the Supreme Court announced that it would review a decision by the U.S. Court of Appeals for the Fifth Circuit striking down a Mississippi law that forbids most abortions after 15 weeks into a pregnancy. The case had been languishing on the Court’s docket for months. The justices’ decision to hear it sends a strong signal that they intend either to eliminate or substantially curtail the constitutional right to abortion recognized nearly half a century ago in Roe. v. Wade.

Since 1973, the justices have been repeatedly asked to overrule Roe but have consistently refused. Early post-Roe cases built on its foundations. Later cases reaffirmed that the Constitution protects some right to abortion, even as an increasingly conservative Court has allowed greater regulation. Is this case any different?

It might not be. Perhaps a majority will once again at least purport to leave Roe standing while opening the door once again to still more state regulation. Yet there are two reasons to think that things have changed.

The first is the Court itself. The justices last considered an abortion case before Justice Ruth Bader Ginsburg’s death. At the time, Chief Justice John Roberts surprised many observers by joining his liberal colleagues in striking down a Louisiana law that was materially indistinguishable from a Texas law the Court had invalidated just two years earlier, despite the fact that Roberts himself had dissented in the Texas case. But now that Justice Amy Coney Barrett—a long-time Roe critic—occupies the seat formerly held by Justice Ginsburg, there would appear to be at least five votes to curtail Roe further regardless of the Chief’s druthers.

Still, curtailing is one thing. Why would the Court take the more drastic step of overruling Roe? That brings us to the second factor: the case itself.

Prior cases in which the Court has eroded Roe involved regulations, not prohibitions. Could a state mandate a 24-hour waiting period for an abortion? The justices said “no” in 1983 but then said “yes” in 1992. Could the government forbid a particular method of abortion? The Court said “no” in a 2000 case from Nebraska but then said “yes” in a 2007 case involving the federal Partial-Birth Abortion Ban Act.

Although such decisions have combined with other factors to make abortion more difficult, the Supreme Court has not yet faced a case that involves quite the frontal challenge to Roe’s core that the Mississippi law does. It remains possible that the Court will purport to uphold the law without formally overruling Roe, but as I shall explain, any such decision would be highly disingenuous.

Trimesters, Undue Burdens, and Viability

To understand what makes the Mississippi case different from other post-Roe abortion cases the Court has faced, it is useful to examine what has changed since Roe and also what has remained constant. In Roe, the Supreme Court matched the law to the medical practice of dividing pregnancy into roughly even thirds or trimesters. During the first trimester, regulations of abortion were presumptively invalid; during the second trimester, health regulations would be permitted but still subject to close judicial scrutiny; and only in the third trimester—after a fetus was “viable,” that is, capable of surviving outside the womb—was the state’s interest in fetal life deemed sufficient to justify abortion prohibitions, although even then there needed to be exceptions to any prohibitions when an abortion was needed for the health or to save the life of the person carrying the pregnancy.

In the 1992 case of Planned Parenthood v. Casey, the Court reaffirmed what it deemed Roe’s central holding—that the state could not forbid abortion prior to viability. Yet while preserving the distinction between the second and third trimesters, the lead opinion in that case announced a new legal standard that blurred the line between the first and second trimesters. Under the new standard—which has governed for nearly three decades now—regulations of abortion that fall short of prohibitions are permissible at any point in pregnancy, so long as they do not impose an “undue burden” on the right to obtain an abortion.

Recent disputes in the high Court have involved arguments over what burdens short of prohibitions constitute undue burdens. For example, both the 2016 Texas case and the 2020 Louisiana case involved state laws requiring doctors who perform abortions to have admitting privileges at nearby hospitals. The same Texas case also involved a state law requiring that clinics where abortions are performed be outfitted like hospitals. In such cases, the legal question is whether regulations that fall short of prohibitions unduly impede abortion access.

In the entire post-Roe period, however, it has been taken for granted that a law that outright forbids pre-viability abortions would be unconstitutional. The undue burden test—designed specifically to address abortion regulations rather than prohibitions—would not come into play. A ban on pre-viability abortions would be invalid under the portion of Roe that the Casey Court expressly reaffirmed: the part that says the state may only forbid abortion post-viability.

The Mississippi Law

The Mississippi law pretty obviously runs afoul of that central holding.

To be sure, even Roe leaves some wiggle room. In a country in which large segments of the population deny the efficacy of vaccines and other public health measures even to the peril of themselves and their loved ones, it is not surprising that there is political contestation over the scientific question of when a fetus is viable. Thus, pro-life activists tend to argue that viability occurs earlier in pregnancy than commonly accepted.

Yet even the most aggressively pro-life view pegs viability at 20 weeks—and even then only by using an unconventional counting method and including babies born extremely prematurely as viable. Mississippi’s 15-week cutoff cannot plausibly be described as based on a dispute over when viability occurs. To uphold it, the Supreme Court would have to overrule what it has previously deemed Roe’s central holding.

Should the Court discard the viability line? As Professor Sherry Colb argues on my blog, the Court’s cases do a poor job of justifying the viability line. However, as she also argues, the line can be defended on grounds that the Court has not expressly endorsed—namely that “once viability arrives, a woman no longer has the right to kill her fetus, a right that she had for the whole pre-viability period only because” ending a pregnancy “and killing were inextricably linked.” She argues that understanding viability this way means “that the abortion right was never really a right to kill to begin with; it was a right of a person to stop housing another living being inside her body.”

Moreover, the fact that the viability line has been repeatedly challenged and yet upheld would seem to make the force of stare decisis especially strong in this context, turning Roe and Casey—at least with respect to the no-pre-viability-prohibitions rule—into what are sometimes called “super precedents” or even “super-duper precedents.” These admittedly silly terms imply that one must think that to overrule the viability line now, the Court must conclude not just that it is mistaken but that it is profoundly mistaken.

That said, I am not so naïve as to think that five or more justices will want to preserve the viability line. The Court did not grant review in the Mississippi case to pat the judges of the Fifth Circuit on the back. A majority almost certainly will cut back on Roe; the only real question is how.

Will the Court Lie?

One possibility would be for the Court to overrule Roe entirely in the Mississippi case, holding that laws proscribing or regulating abortion are subject to no greater judicial scrutiny than laws regulating the length of the work week or dangerous products. If the Court were to do so, it would likely purport to justify the result by incanting something like “abortion is not mentioned in the Constitution,” which would be true but a non sequitur. The Constitution also does not mention a great many questions that the justices would be loath to return to the tender mercies of purely legislative judgment—such as whether women may be lawyers or serve on juries; whether couples (straight or gay) may marry; and whether indigents charged with serious crimes have a right to free counsel.

Or perhaps the Court will say that the original understanding of “due process” did not include a right to abortion. That too would be unpersuasive, given how many other aspects of contemporary jurisprudence embraced by conservatives cannot be plausibly justified by any version of originalism that is not so indeterminate as simply to serve as a mask for ideology.

But at least frank overruling of Roe would be honest about where the Court wants to move the law. A decision that upholds the Mississippi law while purporting to forestall deciding the ultimate fate of Roe would be brazenly dishonest. Nonetheless, I believe that such a dishonest course of action is somewhat more likely than a clear overruling of Roe in the Mississippi case.

The Court granted review on one question only: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” Perhaps a majority will say “no,” because it is permissible even under Roe for a state to ban some pre-viability abortions if undertaken for a bad reason, like sex-selection abortions or what some right-wing jurists inflammatorily call “eugenic” abortions. If so, that would be doubly dubious: first because the post-Roe cases do not in fact recognize such exceptions; and second because, even if the Court were now to create such exceptions, they would not be relevant to the Mississippi case, which bans most post-15-week abortions regardless of the reason for the abortion.

A somewhat better option would be for the Court to say that Roe and subsequent cases considered the conflict between bodily and parental autonomy on the one hand versus the state’s interests in health and fetal life on the other. They did not consider other interests—like avoiding fetal suffering—that might justify prohibitions earlier in pregnancy. Yet if they take this route, the justices would need to buck the scientific consensus, which establishes that the capacity of a fetus to feel pain does not arise before viability.

Could they do that? Maybe. A couple of iconoclasts argue for a much earlier point in pregnancy at which a fetus might experience something like pain.

Yet even those iconoclasts acknowledge uncertainty and recognize that the logical implication of their view is that pain-capable fetuses should be administered anesthesia, not that abortion should be banned.

As the co-author of a book on abortion and animal rights—which takes seriously the problem of fetal pain—I would be very interested in a robust debate about the issue, but it should be clear that fetal pain is a short-term distraction for the pro-life movement, which opposes most abortions from the moment of conception. Even if the iconoclasts whose paper I linked above are right in their fears, at most that fact might be invoked to justify the Mississippi law. No one credibly thinks fetal pain exists in the first two or three months of pregnancy, when most abortions occur.

If the justices intend to use highly contested claims about fetal pain to justify upholding the Mississippi law, they will need to shift to some completely different rationale if and when they inevitably agree to hear a case from a state with an even more restrictive law, like the one Texas enacted close on the heels of the certiorari grant in the Mississippi case.

Posted in: Reproductive Law

Tags: Abortion, SCOTUS

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