Dobbs v. Jackson Women’s Health Organization

law case
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December 2021
United States

Dobbs v. Jackson Women’s Health Organization, legal case, argued before the U.S. Supreme Court in December 2021, that addressed the question of whether all state prohibitions of elective abortions performed before the point of fetal viability are unconstitutional. That question had been answered in the affirmative decades earlier by the Supreme Court’s decision in Roe v. Wade (1973), which recognized a constitutional right to obtain an abortion before approximately the end of the second trimester of pregnancy (which the Court understood as the usual point of fetal viability). In its ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court affirmed the “essential holding” of Roe, which it described in part as “a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.” As the Court explained, a state unduly interferes in the right to pre-viability abortion if its restrictions “impose…an undue burden on a woman’s ability to make this decision” or present “a substantial obstacle to the woman’s effective right to elect the procedure.” Notwithstanding the Court’s holdings in Roe and Casey and its other rulings reaffirming a constitutional right to pre-viability abortion, Mississippi, the state appellant in Dobbs v. Jackson Women’s Health Organization, claimed that laws that ban pre-viability abortions are not necessarily unconstitutional. States may “prohibit elective abortions before viability,” the state argued, “because nothing in constitutional text, structure, history, or tradition supports a right to abortion.” Dobbs v. Jackson Women’s Health Organization drew national attention because a Supreme Court ruling in Mississippi’s favour would serve a long-standing goal of the anti-abortion movement by enabling states to ban almost all abortions in their jurisdictions.

The case arose in March 2018, when the Mississippi state legislature adopted the Gestational Age Act (HB 1510), which prohibited almost all abortions after 15 weeks of pregnancy—well before the point of fetal viability, which usually occurs at about 24 weeks. On the day that HB 1510 was to take effect, the Jackson Women’s Health Organization, the only licensed abortion clinic in Mississippi, filed suit in federal district court, challenging the constitutionality of the law and requesting a temporary restraining order, which was issued the following day. The district court granted the clinic’s motion for summary judgment (judgment without trial in cases where there is no dispute regarding the relevant facts and the law clearly favours one party over the other). It held that “[t]he record is clear: States may not ban abortions prior to viability; 15 weeks lmp [last mentrual period] is prior to viability; and plaintiffs provide abortion services to Mississippi residents after 15 weeks lmp.” In addition, the court permanently enjoined the law. In December 2019 a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld the district court’s ruling as follows:

In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban. Thus, we affirm the district court’s invalidation of the law, as well as its discovery rulings and its award of permanent injunctive relief.

The Fifth Circuit’s ruling was then appealed to the Supreme Court, which agreed in May 2021 to review the case, though it limited the issues to be decided to the single question of whether all bans on pre-viability abortions are unconstitutional. Oral arguments were heard in December.

In a brief submitted in July, Mississippi had urged the Court to overturn Roe and Casey, arguing in part that both decisions were “egregiously wrong” in finding a right to pre-viability abortion in the Constitution, where abortion is nowhere mentioned. If the Court did not wish to go that far, the state continued, it could instead hold to Casey’s “undue burden” standard while finding that HB 1510 did not impose such a burden on women seeking an abortion in Mississippi. In support of that claim, the state argued that, because Jackson Women’s Health Organization is the only abortion provider in Mississippi and does not perform abortions after the 16th week of pregnancy, the burden imposed by HB 1510 would amount to only a small reduction in the period during which a woman could obtain an abortion in the state.

The Supreme Court was expected to issue a decision in the case during the remainder of its 2021–22 term, which would likely end in June. In May 2022, however, an apparent draft of a majority opinion in the case, written by Justice Samuel A. Alito, Jr., was leaked to a political news publication in what would be an extraordinary breach of the traditional secrecy in which the Court conducts its deliberations. The opinion, dated February 2022, indicated that the Court had voted to overturn both Roe v. Wade and Planned Parenthood v. Casey.

Brian Duignan