American access to abortion is probably in the greatest danger it has seen since 1973. Hayden Thorne explains why. 

The United States Supreme Court last week agreed to hear a case that will directly challenge abortion rights and the precedent set by the famous 1973 decision in Roe v. Wade. More specifically, the Court has asked for argument on the question of “whether all pre-viability prohibitions on elective abortions are unconstitutional”.

The case, under the heading Dobbs v. Jackson Women’s Health Organization, arises out of a challenge to a 2018 Mississippi law that bans abortion where the probable age of the unborn child is more than 15 weeks. The law intentionally violates Roe v. Wade and the nearly 50 years of Supreme Court law written since that decision, in a legislative attempt to force the Court to reconsider the constitutionality of abortion.

Lower courts have already ruled the law unconstitutional as a violation of the constitutional rule laid out in Roe, meaning it can only come into effect if the Court overturns its own precedent.

Indeed, the Federal District Court judge who ruled the law unconstitutional was particularly scathing of the Mississippi legislature, rebuking the state for choosing “to pass a law it knew was unconstitutional” and for endorsing “a decades-long campaign, fuelled by national interest groups, to ask the Supreme Court to overrule Roe v. Wade“. The judge, Carlton W. Reeves (an African-American appointed by Obama in 2010, and depressingly only the second African-American Judge in Mississippi), concluded: “This court follows the commands of the Supreme Court and the dictates on the United States Constitution, rather than the disingenuous calculations of the Mississippi legislature.”

Reeves’ opinion was affirmed by the federal Court of Appeals, and it is worth noting that the matter could have rested there. The Supreme Court has almost total control over the cases it hears, requiring at least four justices to vote for a case to even be heard. Had the Court chosen not to hear the case, the law would have remained unconstitutional, and Roe would have remained the law of the land.

That the Court has agreed to hear the case is, however, not altogether surprising. In fact, it could be the ultimate culmination of a decades-long project by the Republican Party to pack the federal judiciary with conservative judges at all levels of the judiciary. Ironically, the Roe decision is actually grounded in traditional conservative values like privacy and personal autonomy, was written by a Republican-appointed Justice and concurred in by the conservative Chief Justice of the day, Warren Burger. It was not until the rise of the religious right in the years following Roe that abortion became such a prominent issue for the Republican Party.

Haven’t we been here before?

If this narrative sounds depressingly familiar – that’s partly because it is. In May 2019 I wrote about similar challenges to the constitutionality of abortion. The Court subsequently found a Louisiana law that would have restricted abortion access unconstitutional in June Medical Services, LLC v. Russo. Chief Justice John Roberts cast the pivotal vote in that case, siding with the Court’s then-four liberal Justices to preserve the constitutionality of abortion.

So, what’s changed?

Since the 2020 June Medical Services decision, the Court tragically lost one of its liberal members (and one of its greatest Justices) Ruth Bader Ginsburg. Ginsburg was contentiously replaced in the lead-up to the 2020 election by Justice Amy Coney Barrett. That change has two major implications: it strengthens the Conservative wing of the Court to an effective 6-3 split. More importantly, it greatly reduces the influence of Chief Justice Roberts, who had begun to act as, if not a swing justice, then at least a moderate and pragmatic influence of the Court. Even if Roberts chooses to maintain his current position, there are five other conservative Justices who could, in theory, strike down Roe.

Where next?

The first thing to note is that this will not be resolved quickly. The case will likely not be heard until the end of the year at the earliest, and a ruling will probably not come before March/April in 2022. The Court will likely be inundated by amicus curiae submissions (made by interest groups, religious organisations, medical bodies and so on), and will take their time to consider all the issues.

Predicting what the Court might do is a notoriously difficult task. The Justices can be unpredictable at the best of times, and they have a well-documented responsiveness to public opinion. And despite what the religious right and southern Republicans would have you believe, American public opinion actually trends towards support for Roe. There are also several different approaches the Court could take, from affirming Roe, to small changes around the margins, to a complete overrule. What is clear, however, is that American access to abortion is probably in the greatest danger it has seen since 1973.

America divided?

Whatever happens in Dobbs, it feels inevitable that this case will deepen the divides in American society that became particularly pronounced during Donald Trump’s presidency. The Court will be fully aware that any decision it makes could set alight weeks, months, or even years of social unrest.

An adverse decision would also fuel calls on the left for reform of the Supreme Court from many who feel the institution has fallen out of touch with modern society. President Joe Biden has already initiated an inquiry into the Court and the way it functions – and we should expect to hear plenty more discussion as this case comes closer to resolution. Watch this space!

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