DOBBS V. JACKSON’S WOMEN’S HEALTH ORGANIZATION
AND THE ANTICIPATED END OF FEDERAL ABORTION RIGHTS Pro-life advocates appear close to the reversal of Roe v. Wade1 and the ending of federal abortion rights. This is because the Court’s conservative majority has signaled this to be the likely outcome of Dobbs v. Jackson’s Women’s Health Organization, involving the constitutionality of a Mississippi statute that directly contravenes the current federal abortion rights framework.2 In the meantime, Tennessee and twenty other states have successfully petitioned appeals courts to lift district court injunctions to restrictive state abortion laws that were enacted after the most recent changes to the composition of the Supreme Court..3 Roe provided that no woman could be denied an abortion in her pregnancy’s first trimester, with an expansive maternal life and health exception applying to state abortion restrictions in the pregnancy’s second and third trimesters.4 By comprehensively and legislatively addressing the legality of abortion restrictions, Roe effectively foreclosed the ability of state legislatures to further address the issue. In Planned Parenthood v. Casey,5 the Court revisited the abortion rights issue and replaced Roe’s trimester approach governing abortion restrictions with one based on fetal viability.6 It also replaced Roe’s strict scrutiny approach to abortion restrictions with a looser undue burden standard allowing state governments to implement broad regulations on abortion providers, including waiting periods, informed consents laws, and the disallowance of public funding.7 The Casey plurality opinion, co-authored by Justices O’Connor, Kennedy and Souter, focused on stare decisis, or the principal of following established precedent, as its rationale for affirming Roe. Casey, however failed to stem the tide of abortion rights polarization, which resulted in certain states exploiting the laxity of the undue burden standard to undermine abortion access by measures designed to make abortion more elusive, but still legal.8 This process of increasing abortion restrictions at the state level resulted in Texas implementing the two abortion access restrictions that were at issue in Whole Woman’s Health v. Hellerstedt.9 The first imposed
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a requirement that all abortion clinic OBGYN’s within the state have admitting privileges at hospitals situated no further than 30 miles from the abortion clinic and the second required that clinics include costly surgical centers to address abortion-related complications.10 In a 5-3 majority decision authored by Justice Breyer,11 and joined by Justice Kennedy, the Court concluded the two provisions at issue improperly imposed a substantial obstacle to a woman’s due processbased abortion rights. In doing so, the Court expanded upon Casey’s definition of abortion rights by concluding that abortion regulations must satisfy heightened scrutiny review.12 Whole Woman’s Health seemed to anticipate stability in the area of abortion rights jurisprudence. Abortion Rights under a More Conservative Court After the additions of Justices Neil Gorsuch and Brett Kavanaugh, the Court revisited the issue of federal abortion rights in June Medical Services v. Russo. At issue in this case was a Louisiana’s Act 620, which was almost word-for-word identical to Texas’s ‘admitting privileges’ law that was invalidated in Whole Women’s Health.13 Once again, the Court rejected the opportunity to reverse itself on abortion rights, this time because the Chief Justice, who dissented in Whole Woman’s Health, concurred with the majority, based on stare decisis and his concern with protecting the Court’s institutional legitimacy. Once again, it seemed that the Court had cabined the issue of abortion rights for the foreseeable future. However, the abortion rights issue came up again when Justice Ginsburg died in September 2020 and replaced, on an expedited time frame, by the conservative leaning Justice Amy Coney Barrett. This gave the Court a decisive 6-3 conservative majority and led some states to resume their legal challenges to district court injunctions against restrictive abortion laws that textually violated Casey and Russo. Mississippi, for example, enacted a bill in 2018, called the Gestational Age Act, that prohibited all
DICTA
April 2022
