UPDATE (12/01/2021 12:36 p.m. E.T.): The Supreme Court concluded its oral arguments Wednesday with the majority-conservative justices suggesting they are in favor of upholding Mississippi’s abortion law. It is unclear if the court will take the additional step of overturning abortion precedents, including Roe v Wade.
The Supreme Court is still in the process of deciding whether states can ban or severely restrict a woman’s ability to obtain an abortion. On Wednesday, the court will hear oral arguments in a case that challenges Mississippi’s restrictive abortion law. That law prohibits abortions after 15 weeks of pregnancy. Mississippi’s law is unconstitutional according to the Supreme Court’s current case law, including Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.
The Supreme Court is still in the process of deciding whether states can ban or severely restrict a woman’s ability to obtain an abortion.
The big question in the Mississippi case, Dobbs v. Jackson Women’s Health Organization, is how the court could narrow or overturn those old cases and potentially even conclude that the right to obtain an abortion is no longer protected under the U.S. Constitution. The court is likely to take one of three routes: It could conclude that states can completely ban abortions; that states can restrict abortions before a fetus is viable, which would allow much more restrictive abortion laws than are currently permitted; or it could decide that abortion laws should stay about the same as they are now (an unlikely scenario).
Roe, handed down by the court in 1973, is one of the most celebrated and vilified Supreme Court decisions. In a 7-2 vote, the court concluded that the Constitution protects a woman’s right to have an abortion. It feels both unimaginable and yet inevitable that almost four decades later that decision is now in jeopardy.
Almost 20 years after Roe, in Casey, the court told us it was retaining and reaffirming the “essential holding of Roe.” But in fact, Casey pared back the precedent. Roe created the so-called trimester framework: During the second trimester, states could restrict but not ban abortions, and during the third and final trimester, when fetuses are typically viable outside the womb, states could ban abortions except in cases when the life or health of the mother was threatened. Fetal viability was typically at about 28 weeks of pregnancy when the court decided Roe.
Casey eliminated the trimester framework and instead created the “undue burden” standard. Essentially, up until viability (closer to 24 weeks in 1992), states could regulate abortions as long as those regulations did not present an undue burden. What is an undue burden? Whatever at least five members of the Supreme Court say it is. Under Casey, states could ban abortions post-viability, except when the life or health of the mother is at risk.
And plenty of state laws that present real burdens to a woman’s ability to have an abortion are already permitted under the Roe and Casey framework. For instance, some states have imposed waiting periods, mandatory ultrasounds or require that certain abortions be performed in a hospital.
But Mississippi’s law, which bans abortions after 15 weeks of pregnancy and therefore before the fetus is viable, is patently incompatible with both Roe and Casey. Under Casey, states can only burden, not ban, access to abortions up until about 24 weeks of pregnancy.
So what, after decades of constitutional protections, has changed? It’s not the majority attitude toward abortion, which continues to favor at least partial abortion rights. Instead, the composition of the court has changed. This is the most conservative court we have seen in almost a century, with a solid six-member conservative wing.
It is a safe bet that if the Texas law originally at issue in Roe came before this current Supreme Court, the justices would not have protected a woman’s right to choose. But the current court isn’t looking at the original law; it must consider what to do now, given more than 40 years of Supreme Court case law protecting abortion rights. Under the doctrine of stare decisis, the court is supposed to respect its past decisions unless they are clearly wrong or unworkable. The idea is that people should be able to rely on these decisions, and hence predict future precedent. Stare decisis also helps support the idea of judicial integrity and independence; we are more likely to respect judicial decisions if they are built on more than the personal views of the current majority. This is part of the reason that in virtually every Supreme Court confirmation hearing, the nominee must pledge that they support the doctrine of stare decisis and, as Justice Brett Kavanaugh stated, understand that Roe is “settled law.” Meanwhile, behind this strange obligatory performance, we all know Roe will no longer be settled if five members of the court upend it. If the court didn’t want to whittle away reproductive rights, there would be little point in it agreeing to hear the challenge to Mississippi’s law in the first place. But at least four members of the court voted to take this case. And it is reasonable to assume those four (or more) thought there were at least one or two other judges willing to tinker with a woman’s right to choose. Here are the most likely scenarios. The court could decide once again to respect the “essential holding of Roe,” uphold Americans’ constitutionally protected right to obtain an abortion, but decide that right is much narrower than we previously thought. This outcome could allow states to enact very strict bans like Mississippi’s law. Or the court could simply decide Roe was wrongly decided and the Constitution does not protect a woman’s right to choose. This would bring us back to pre-Roe days, and states would decide for themselves whether to allow abortions or ban them completely. The court could also decide the law violates the current Roe and Casey framework and strike it down, in effect acknowledging it shouldn’t have taken the case at all. We will likely know which route the court takes by the end of June 2022.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
