Supreme Court to Hear Direct Challenge to Roe v. Wade

The Supreme Court of the United States will hear oral arguments on December 1 over a Mississippi Pro-Life law that protects preborn children at 15 weeks’ gestation. Current abortion jurisprudence (primarily Roe v. Wade and Planned Parenthood v. Casey) allows abortion at any time in pregnancy for any reason. The main question justices will consider in this case (Dobbs v. Jackson Women’s Health Organization) is whether all early abortion bans are unconstitutional. In July, however, Texas Right to Life filed an amicus brief arguing the Supreme Court should overturn Roe altogether.

What: Oral arguments in Dobbs v. Jackson Women’s Health Organization

When: Wednesday, December 1, at 9 a.m. Central

Where: United States Supreme Court Building or online here

We could see three possible outcomes for this case: 
1.) The Supreme Court could uphold the lower court’s ruling against the Mississippi law, affirming current standards established by Roe v. Wade and subsequent cases.

This would be the most disappointing outcome and, fortunately, the least likely. If today’s court wanted to uphold the current standard, they likely wouldn’t have taken up the Mississippi case in the first place. Lower court rulings already blocked the Mississippi law, affirming Roe, but the justices voluntarily took up Dobbs anyway. The Supreme Court didn’t need to hear the case—unless they had an intent to change something.

2.) The court could make up a new precedent, weakening but not overturning Roe.

Upholding Mississippi’s law while not reversing Roe would require challenging calculus.

If the Supreme Court merely weakened Roe, the justices would have to craft a new standard for reviewing Pro-Life laws. Roe and Planned Parenthood v. Casey—which together constitute the judiciary’s primary abortion precedents—do not comport with Mississippi’s 15-week protections. The six conservative-leaning justices cannot rubber-stamp the Mississippi law while applying Roe and Casey. They must formulate a new framework.

One such new standard could be a specific timeframe (e.g., 12-weeks) or a specific interest (e.g., fetal pain) and use that new timeframe or interest for evaluating Pro-Life laws. The problem with this route is that any determinative framework must be newly invented without a historical or textual basis. This framework will appear to be subjectively fabricated, mainly because such a framework would indeed be subjectively fabricated.

The other potential path for weakening Roe would be to create a vague standard (e.g., a pregnant mother must have a reasonable opportunity to obtain an abortion). This standard would depart from Roe and Casey to a lesser degree, and the lack of specificity coheres with a supposed right not outlined in the Constitution. However, this would invite more litigation testing the hazy contours of this new framework. The Supreme Court likely would not want to prompt more entanglement in such a polarized issue. 

Furthermore, the popular assumption is that the conservative-leaning justices want to eventually reverse Roe, even if not in Dobbs. Weakening Roe now would require them to fashion a new standard, only to overrule themselves years later. This outcome would be uncharacteristic based on the justices’ own writings about consistency and stability in the court.

3.) The court could overturn Roe entirely and return the authority to protect preborn children from abortion back to every state.

Texas Right to Life Director of Media and Communication Kimberlyn Schwartz stated: 

“Now is the time for the Supreme Court to reverse the deadliest ruling in our nation’s history. Nothing in the Constitution supports the idea that abortion is a constitutional right. We are optimistic that the court will see what we have known all along: Roe v. Wade is a lie and preborn children deserve legal protection.”

If the court overturns Roe, the issue of abortion will be decided state by state. Thus, if the court overturns Roe in the Mississippi case, elective abortion will be completely outlawed in Texas.

A ruling in Dobbs will likely occur in June 2022. 

Meanwhile, the Supreme Court has not yet released an opinion on the Texas Heartbeat Act in abortionists and the Department of Justice’s lawsuits.

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