Tuesday, November 30, 2021

Dobbs in Seven Steps

Tomorrow the Supreme Court will hear argument in Dobbs v. Jackson Women’s Health Organization. Many observers have offered predictions about how the case will turn out. My guess is that the Court majority will uphold the Mississippi law (which bans most abortions after 15 weeks) in seven steps: 

1. Mississippi asks us to overrule our holding in Roe, as affirmed in Casey, that the Constitution protects the right of a pregnant woman to terminate her pregnancy. It is not necessary today to revisit that holding. Even assuming—as we do in this case--that the Constitution does protect a right to abort a fetus, the Mississippi law before us is valid. 

2. We adhere to Casey’s undue burden framework. 

3. While the joint opinion in Casey took the position that before viability the state may not ban abortion, that approach was error, and, if followed, it would elevate the right to abortion (which for purposes of this case we assume is protected by the Constitution) above all other constitutional rights, the exercise of which can be prohibited in at least some circumstances. Thus, abortion bans, like all abortion regulations, should be subject to the undue burden test.

4. We note that in the period since Casey several significant developments have occurred. Pregnancy tests are now cheap and reliable. New forms of cheap and reliable contraception have also become available. Indeed, access to contraception is guaranteed to most employees without cost under the Affordable Care Act. In addition, since Casey, new safe and effective oral abortifacients have become available to women. 

5. Applying Casey, a state law that bans abortion prior to viability does not impose an undue burden so long as the law gives the pregnant woman a reasonable opportunity to obtain an abortion. 

6. The challenged Mississippi law provides a pregnant women with a full fifteen weeks to obtain an abortion. This period easily provides a reasonable opportunity for the pregnant woman to exercise her constitutional right (assumed to exist for purposed of this case) to terminate the pregnancy 

7. The dissent argues that for many women fifteen weeks is an insufficient period to make the difficult choice of whether or not to proceed with a pregnancy. Many life decisions, however, are reached in shorter time periods. To adopt the dissent’s view would be to attribute to women an inability to think carefully about their own circumstances, weigh competing considerations, and settle on the best course of action.