Without Promising Alternatives to the ‘Viability’ Rule, the Supreme Court Seems Inclined to Ditch Its Abortion Precedents
The U.S. Supreme Court today considered whether to uphold Mississippi’s ban on abortions after 15 weeks of gestation, which would require overturning or revising longstanding precedents saying the Constitution does not allow states to prohibit abortion prior to “viability,” the point at which a fetus can survive outside the womb. At least five justices seemed inclined to uphold Mississippi’s law, and possibly to go further by ruling that the Constitution does not protect a right to abortion after all.
Before today’s oral arguments in Dobbs v. Jackson Women’s Health Organization, we knew that six of the current justices either definitely or probably take a dim view of Roe v. Wade, the 1973 decision that said women have a right to abortion under the 14th Amendment, and Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe‘s “central holding” that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” That did not necessarily mean they were prepared to renounce both rulings, since the conviction that a case was wrongly decided is just one of several factors the Court is supposed to consider in deciding whether to overturn a precedent. Just one of the justices, Clarence Thomas, has publicly said the Court should overturn Roe, a view he first made clear by joining the dissent in Casey.
The oral arguments focused largely on whether the Court could replace the widely criticized viability rule with a different dividing line that would be principled and practical. But only Chief Justice John Roberts seemed to be seriously entertaining that possibility. While Mississippi is urging the Court to overturn Roe and Casey, he said, “what we have before us…is a 15-week standard.” If the issue is that “women should have a choice to terminate their pregnancy,” he said, “that supposes that there is a point at which they’ve had the…opportunity to [choose], and why would 15 weeks be an inappropriate line?”
Jackson Women’s Health Organization, the abortion clinic challenging Mississippi’s law, itself cast doubt on the workability of alternatives to the viability rule. “There are no half-measures here,” its Supreme Court brief says. “Each of the State’s purported alternatives would upend the balance struck in Casey and ultimately extinguish ‘the woman’s liberty to
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