What just happened?
The Supreme Court will hear oral arguments today in Dobbs v. Jackson Women’s Health Organization, one of the most important pro-life case in decades. Here is what you should know about how the case could change the legality of abortion in America.
What is the Dobbs case about?
The state legislature of Mississippi passed a law in 2018 called the “Gestational Age Act,” which prohibits all abortions (with few exceptions) after 15 weeks’ gestational age. The law was challenged in federal court by the only remaining licensed abortion facility in Mississippi—Jackson Women’s Health Organization—and one of its doctors.
The court blocked Mississippi from enforcing the law, concluding that the state had not provided evidence that a fetus would be viable at 15 weeks. Current Supreme Court precedent—based primarily on the cases Roe v. Wade and Doe v. Bolton—prohibits states from banning abortions prior to viability.
The U.S. Court of Appeals for the Fifth Circuit affirmed the lower court decision, but Mississippi appealed to the Supreme Court. The question the Supreme Court is being asked to consider is whether Mississippi’s law—banning nearly all abortions after 15 weeks’ gestational age—is constitutional.
Why is this case significant?
There are two reasons why pro-life Christians are enthusiastic—and cautiously hopeful—about this case.
The first is that a majority of justices appear to believe both Roe v. Wade and Doe v. Bolton were wrongly decided. As a new article in the Harvard Journal of Law & Public Policy points out, “As a matter of the Constitution’s text and history, it is no secret that Roe is not just wrong but grievously so. Roe was roundly criticized as wrong the day it was decided, and it has been robustly opposed both within and outside the Court ever since. No sitting Justice has defended the merits of its actual reasoning.”
The justices most likely to overturn the current abortion precedent are, in descending order of likelihood, Thomas, Alito, Barrett, Kavanaugh, Gorsuch, and Roberts.
Even if the Court does not overturn Roe and Doe, the Dobbs case could undermine those precedents by allowing states to determine when life in the womb becomes “viable.”
Why is the issue of viability important for the pro-life cause?
Viability refers to the stage of development at which an unborn child is capable of living, under normal conditions, outside the womb. The Supreme Court ruled in the 1992 case Planned Parenthood v. Casey that a state “may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”
The problem with using viability as a standard is that it is heavily determined by technology and medical capabilities. For instance, in the United States viability occurs at approximately 24 weeks of gestational age, while in Nigeria fetal viability occurs four weeks later, at 28 weeks of gestation. The difference is not based on any moral or metaphysical considerations, but simply on the widespread availability of neonatal technology.
Because viability is such an arbitrary standard, it is deemed problematic as a marker for abortion—even by some who support abortion rights. As Elizabeth Chloe Romanis wrote in the Journal of Law and the Biosciences, “There is incoherence in the meaning of viability and . . . it is thus a conceptually illegitimate basis on which to ground abortion regulation.”
The Supreme Court could decide the viability standard is insufficiently rigorous and it is uncertain when viability occurs. As the court noted in the 2007 case Gonzales v. Carhart, “State and federal legislatures [have] wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Since viability is uncertain, the court could determine that states could be allowed to impose pre-viability prohibitions on abortion.
The effect of such a ruling would not allow complete bans on abortion, and thus would not overturn Roe. But it could allow states to impose sufficiently strict restrictions to prohibit almost all abortions, which would have much the same effect as overruling current abortion precedents.