Dobbs v. Jackson’s Women’s Health Organization and the

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 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

COVER STORY By: M. Akram Faizer

Lincoln Memorial University Duncan School of Law

abortions after 15 weeks of pregnancy that was blocked by a three-judge panel of the Fifth Circuit Court of Appeals.14 After Mississippi’s appeal in Dobbs v. Jackson’s Women’s Health Organization15 inexplicably sat on the Court’s docket, the Court’s conservative leaning justices granted certiorari and heard oral argument on the matter in late November 2021.16 After the conservative majority signaled a willingness to end federal abortion rights, Justice Sotomayor, using very strong language, questioned “[w]ill this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”17 Being mindful that Court watchers have been proven wrong before, especially when it comes to abortion rights, most are expecting the Court to end federal abortion rights when its decision is issued in June or July 2022.

Since then, the Court majority, anticipating a decision in Dobbs to end federal abortion rights, has seemingly stopped policing conservative courts of appeal that refuse to enforce the current federal abortion rights framework. In re Whole Woman’s Health, 18 involved the Court refusing to enforce its previous ruling in Whole Woman’s Health v. Jackson.19 Jackson involved a challenge to the Texas Heartbeat Act that empowers private individuals to bring civil actions against those who perform or assist with abortions in situations where there is embryonic cardiac activity, which can manifest in as little as six weeks from a woman’s last menstrual period.20 After defendants sought to have the case dismissed, the Court concluded that the case can proceed and ordered a remand by the Fifth Circuit to the district court for adjudication. Here in Tennessee, Governor Lee signed two abortion bans into law in 2020. The first makes it a felony to perform a previability abortion in situations where a fetal heartbeat is detected (“previability bans”),21 while the second makes it a felony to perform an abortion if the provider knows the woman is seeking an abortion based on the sex or race of the fetus or a test indicating the fetus has down syndrome (“reason bans”).22 After the district court enjoined both sets of bans, the Sixth Circuit Court of Appeals, in Memphis Center for Reproductive Rights v. Slatery,23 voted to lift the district court’s injunction on the reason bans and refused to hear the case until after the Court issues its decision in Dobbs, presumably because Dobbs would govern adjudication of the previability bans.24 In dissent, Sixth Circuit Judge Nelson Moore writes that the decision to stay the district court’s preliminary injunction “showcases a growing trend among federal courts to use facially neutral laws to delay adjudication of laws that significantly impair constitutional rights,” especially in cases concerning abortion. Her concern is that future courts will continue to abuse this trend to undermine “whatever right next falls into the disfavor of a then-reigning majority.”25

The Court issued Roe v. Wade in an attempt to facilitate consensus on the abortion issue. Nearly fifty years later, it can definitively be said that this has not happened. In this author’s opinion, exploitation of the abortion rights issue has arguably worsened political polarization and problematically undermined the integrity of the federal judicial nomination process. Five conservative justices see Dobbs as a potential means of resuscitating the Madisonian framework to, over time, facilitate a consensus on the issue. The sixth conservative, Chief Justice Roberts, fears that by continuously revisiting the issue of federal abortion rights, his conservative colleagues, motivated by a goal of protecting the Court, may inadvertently undermine its institutional legitimacy. Finally, the Court’s liberal minority is concerned about what a reversal of federal abortion rights would mean for women in states with strict anti-abortion laws that were enacted or have remained on the books. Only time will tell.26

1 410 U.S. 113 (1973). 2 No. 19-1392. 3 At the time of this writing, 21 states are poised to immediately ban or dramatically curtail access to abortions if the Court ends federal abortion rights. 4 Id. 5 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). 6 Casey concluded that all women have a pre-viability right to an abortion that states cannot unduly burden, while Roe had concluded that all women have first trimester abortion rights that cannot be restricted. 7 Casey concluded that wait times and informed consent laws are constitutional. Public funding, which has been disallowed by the federal Hyde Amendment, was found constitutional in Harris v. McCrae, 448 U.S. 297 (1980). 8 Measures implemented by conservative state legislatures included parental consent laws, longer waiting periods, intrusive informed consent laws, the requirement of transvaginal ultrasounds, admitting privileges requirements at public hospitals for abortion doctors and the requirement that abortion clinics be turned into ambulatory surgical centers. 9 Whole Woman’s Health v. Hellerstedt, 579 U.S. __ (2016). 10 Id. at 2300. 11 Justice Scalia’s sudden death in February 2016 created a court vacancy that the Republican majority in the U.S. Senate refused to fill before the November 2016 general election. 12 Id. 13 David Brooks, The Abortion Memo, NY Times (Feb. 1, 2018), https://www.nytimes. com/2018/02/01/opinion/abortion-democrats-compromise.html (The New York Times columnist and public intellectual David Brooks attributes Donald Trump’s election to the single issue activists who want pro-life judges). 14 https://www.npr.org/2021/05/17/997478374/supreme-court-to-reviewmississippi-abortion-ban. 15 No. 19-1392. 16 https://www.nytimes.com/2021/12/01/us/politics/supreme-court-mississippiabortion-law.html. 17 https://www.nytimes.com/2021/12/01/us/politics/supreme-court-mississippiabortion-law.html (Justice Sotomayor also asked “How will the Court survive?”). 18 142 S. Ct. 701 (2022). 19 142 S.Ct. 522 (2021). 20 Id. 21 T.S.A. 39-15-216 (2020). 22 T.S.A. 39-15-217(b)-(d) (2020). 23 __ F.4th __ (2022). 24 Id. 25 Id. 26 According to the pro-choice Guttmacher Institute, an end to federal abortion rights would mean that 21 red states would have laws that would dramatically restrict abortion rights, https://www.guttmacher.org/state-policy/explore/abortion-policyabsence-roe.