Notice And Comment: The Supreme Court's Abortion Showdown

How will SCOTUS rule in Dobbs v. Jackson Women's Health?

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Welcome to the inaugural installment of Notice and Comment. As I explained last week, this feature consists of me “noticing” an interesting topic, offering some preliminary thoughts of my own, and inviting subscribers to Original Jurisdiction to “comment” on it. It’s part of my effort to build a reader community here at OJ.

On Monday, the Supreme Court agreed to hear the case of Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law that would ban most abortions after 15 weeks. This is likely to be the biggest abortion decision by SCOTUS in many years — and it could spell trouble for Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which taken together recognize a woman’s constitutional right to an abortion and prohibit states from banning abortion prior to fetal viability.

Supporters of abortion rights fear that the new 6-3 conservative supermajority at the Court will use Dobbs as a vehicle for overruling or severely undermining Roe and Casey. Writing in the Washington Post, Professors Leah Litman and Melissa Murray identify two possible outcomes: the Court might overrule Roe and Casey outright, which “would not be unthinkable,” or it might modify them by ruling “that viability is no longer a meaningful marker for determining when a state may restrict a woman’s right to choose — a decision that would be as consequential as scuttling Roe itself.” Either way, they argue, “a ruling in favor of the Mississippi law could be catastrophic for women — and for the future of reproductive justice.”

Meanwhile, opponents of abortion are hopeful about Dobbs. Ed Whelan described himself as “very glad” the Court agreed to take the case, then offered these additional observations:

[L]aws like Mississippi’s have broad public support. According to an NPR/PBS NewsHour/Marist poll from 2019, only 29% of Americans think that abortion should generally be allowed after the first three months of pregnancy (13 or so weeks). That broad public support is likely to grow when Americans learn that — according to this Center for Reproductive Rights database — France, Italy, Germany, Spain, Norway, Switzerland, and lots of other European countries have a gestational limit of 14 weeks or earlier.

How will the Court rule in Dobbs? A decision is most likely more than a year away — big cases tend to come down at the end of the Term, so we’re probably looking at June 2022 for a ruling (just in time for midterm elections) — but even though it’s far off, it’s worth considering how this critically important case could get resolved.

Here is the question presented in Dobbs: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”

Here is the Fifth Circuit’s answer: yes, based on existing Supreme Court precedent. The opinion was by Judge Patrick Higginbotham, joined by Judge James Dennis; Judge James Ho concurred in the judgment, agreeing that the case was controlled by SCOTUS precedent, but urging the Court to reconsider its past rulings.

Here is my prediction as to the resolution of Dobbs:

  • Justice Barrett will write a plurality opinion for herself and Justices Thomas, Alito, and Gorsuch, voting to reverse the Fifth Circuit, uphold the Mississippi law in its entirety, and overrule Roe and Casey, sending the issue of abortion back to the states.

  • Chief Justice Roberts will write a controlling opinion for himself and Justice Kavanaugh that will take some middle path and claim that Roe and/or Casey remain good law — the Chief and Justice Kavanaugh would be loath to overrule such prominent precedents — while at the same time giving states much greater leeway to regulate and even ban abortion, under certain circumstances.

  • There are many possible approaches. One possible approach by the Chief: rule that viability — while an important factor in evaluating abortion regulations, as recognized by Casey — should no longer be the only factor. Then vacate the Fifth Circuit opinion and remand, with instructions that the Fifth Circuit remand to the district court for additional fact-finding, including broad discovery. The district court in Dobbs limited discovery to the issue of viability — but if viability is no longer the only relevant factor in evaluating abortion laws, the state would be permitted to develop the record on a full range of issues, such as its professed interest in preventing fetal pain. The Fifth Circuit can then reconsider, based on a more fully developed record, whether the Mississippi law is constitutional. This would avoid the firestorm that an outright overruling of Roe would cause, and it would take the focus and fight away from the Supreme Court and redirect it toward lower courts and state legislatures — something that would appeal to Chief Justice Roberts and Justice Kavanaugh.

  • Another possible approach by the Chief: adopting the trimester-based focus of Roe (as opposed the viability-based standard of Casey), reaffirm the rule of Roe that states cannot prohibit abortion in the first trimester (up to 12 weeks), but allow states to prohibit abortion in the second trimester (as opposed to just issue reasonable regulations of abortion). Under this approach, the Court would reverse the Fifth Circuit and uphold Mississippi’s law, but other laws — such as the measure just signed into law by Governor Greg Abbott of Texas, which would ban abortion after six weeks — would still be unconstitutional. From the Chief’s perspective, the advantage of this approach over the first approach is that it offers more of a bright-line rule, avoiding endless litigation over whether a particular state’s abortion law is or is not constitutional. (The disadvantage is that such a rule would be, well, pretty arbitrary.)

  • Justice Kavanaugh will write a solo concurrence discussing the difficulty of abortion as an issue, the many moral complexities it presents, and the strong interests on both sides.

  • Justice Breyer — still on the Court next Term, and enjoying the assigning power he’ll wield as the senior member of the liberal wing — will write a fiery dissent, castigating the conservatives for ignoring stare decisis by gutting Roe and/or Casey, both decades-old, landmark rulings of the Court.

Dobbs could go down in history as one of the Supreme Court’s most important precedents on abortion, one of the nation’s most important and divisive issues. I welcome your thoughts on its likely resolution and any other insights about the case — expressed with care and sensitivity, given the nature of the issue and what’s at stake — in the comments.

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