Dobbs v. Jackson Women’s Health Organization: The Future ofAbortion

Dobbs v. Jackson Women’s Health Organization: The Future of Abortion Rights in America

Kinga Grant-Zawadzki

Edited by Sofia Carigma

Kinga is a first-year political science major from Orange County, California. In the future she hopes to attend either graduate school or law school to pursue a career involving international relations, environmental policy, or foreign service. Outside of writing for the Undergraduate Law Journal she is also a member of the the UCSB Women's Club Volleyball team as well as various other student organizations.

Author Note: This was written prior to the case ruling on Dobbs v. Jackson Women’s Health Organization and the publishing of the leaked draft majority opinion for the case by Politico

ABSTRACT

One of the latest reproductive rights cases to be heard by the Supreme Court is Dobbs v. Jackson Women’s Health. The case questions “whether all previability prohibitions on elective abortions are unconstitutional,” as it seeks to determine the constitutionality of Mississippi’s “Gestational Age Act,” which, among other things, prohibits elective abortions after the fifteenth week of pregnancy. The case threatened tooverturn Roe v. Wade(1973), the landmark decision that determined the unconstitutionality of state bans on abortion, and Planned Parenthood v. Casey (1992), which reaffirmed Roe v. Wade. This case represents a more significant movement by states and “prolife” advocates to limit abortion rights. The other two cases involving abortion heard during the Court’s October 2021 term questioning Texas abortion law exemplify this movement to expand limitations on abortion

90

rights. Because the Supreme Court has onlyheard the case and a ruling has yet to be decided, the possible outcomes of the case, regardless of the decision, will have significant implications on abortion rights in the United States. If the court rules in favor of Dobbs, Roe v. Wadeand the cases it helped uphold will effectively be overturned, thus provoking immense changes to abortion rights in America. Conversely, if the court rules in favor of Jackson Women’s Health Organization, Roe v. Wadewill be upheld along with the cases it helped determine, but the future of abortion rights will remain uncertain as the six-to-three conservative majority in the Supreme Court and efforts by states to undermine Roewill continue. Through the examination of the history of abortion rights in America, the context of Dobbs v. Jackson Women’s Health Organization, and the case itself, two major outcomes for the case are possible. The future of abortion rights in America is dependent upon this case ruling.

I. INTRODUCTION

In 2021, a Supreme Court case with the capability to completely alter abortion rights in America as we know them was argued. Dobbs v. Jackson Women’s Health Organizationseeks to determine the constitutionality of pre-viability elective abortions. The case, originating in Mississippi, made it up to the Supreme Court, illustrating how controversial the issue of abortion rights has become. Abortion rights have always been controversial, especially when looking back on past Supreme Court cases that have affected abortion rights today, such as Roe v. Wadeand Planned Parenthood of Southeastern Pennsylvania vs. Casey. While the case ruling is still undetermined, the implications of the case as a result of a ruling of constitutionality or a ruling of unconstitutionality can already be examined. The possible rulings illustrate a relatively unchanged climate for abortion rights in the United States or the overturning of nearly all pre-existing Supreme Court cases on abortion rights and the implications that come as a result of that.

91

II. HISTORY OF ABORTION RIGHTS CASES IN AMERICA

Much like the debate over abortion rights today, the issue has been controversial throughout American history. Moral and religious arguments versus women’s bodily autonomy divide the sides of the debate. As with many other social or even public health issues, Supreme Court rulings on the subject have been instrumental in determining the outcome of the issue. The most famous Supreme Court cases are Roe v. Wade(1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey(1992). Other abortion rights-related cases have passed through the Court since those rulings; however, none have been quite as impactful. When Americans think of abortion rights, they think of Roe v. Wade. The case originated in Texas, whereJane Roe, the fictional name used for the plaintiff, filed a lawsuit against Henry Wade, the district attorney of the county of Dallas, Texas. She sought to challenge a Texas law making all abortions other than those used to save a woman’s life illegal onthe grounds that it violated a plethora of her Constitutional rights1. After the United States District Court for the Northern District of Texas ruled in Roe’s favor, Texas appealed the decision to the Supreme Court.2 Ultimately, the court issued a 7-2 decision for Jane Roe, thus upholding that the Texas law was unconstitutional, determining that it violated Roe’s right to privacy. First, the court found that the right to privacy was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The Court found two main state interests to exist inthe case: protecting the potential of human life and protecting the mother’s health. The creation of the trimester framework helped balance those interests, further stating that abortion during the first trimester was a decision left to the woman and her doctor. From the first trimester to fetal viability, the state would protect the interest of maternal health while regulating the procedure, and from fetal viability and beyond, the state interest lies with the fetus unless there is a serious threat

1NCC Staff, On this day, the Roe v. Wade decision, National Constitution Center (January 22, 2022), https://constitutioncenter.org/interactiveconstitution/blog/landmark-cases-roe-v-wade. 2 Id.

92

to maternal life.3 It is important to note that the first trimester lasts from week 1 to about week 12 or 13, the second trimester lasts from the end of the first trimester until approximately week 26, and the third trimester lasts from week 27 until birth, andthat fetal viability normally occurs at around 23-24 weeks.4 The decision in Roe was controversial, with 46 states needing to change their abortion laws as a result of it.5 Arguably the next most famous Supreme Court case involving abortion rights is Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). This case began when several abortion clinics and physicians challenged the Pennsylvania legislature’s amended abortion control law. The case question was: “Can a state require women who want an abortion to obtain informed consent, wait 24 hours, if married, notify their husbands, and, if minors, obtain parental consent without violating their right to abortion as guaranteed by Roe v. Wade?6” In a 5-4 decision for Planned Parenthood of Southeastern Pennsylvania, the Court kept three of the main findings from Roe: women have the right to pre-viability abortions without undue interference from the state, the state may restrict post-viability abortions, and the state has a legitimate interest in protecting the life of the fetus and woman’s health.7 Since these two monumental cases in abortion rights, many other cases involving the issue of abortion have passed through the Supreme Court. In 2007, Gonzales v. Carhartupheld a federal statute that banned partialbirth abortions.8 In 2016, the Supreme Court struck down a Texas laws

3 Roe v. Wade (1973), Cornell Law School Legal Information Institute, https://www.law.cornell.edu/wex/roe_v_wade_(1973) (last visited April 4, 2022). 4 Pregnancy the three trimesters, UCSF Health, https://www.ucsfhealth.org/conditions/pregnancy/trimesters (last visited April 17, 2022). 5 Roe v. Wade (1973), Cornell Law School Legal Information Institute, https://www.law.cornell.edu/wex/roe_v_wade_(1973) (last visited April 4, 2022). 6 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (June 29, 1992). 7 Id. 8 Id.

93

requiring abortion providers to maintain admitting privileges and ambulatory surgical centers in Whole Woman’s Health v. Hellerstedt .

9

III. CURRENT STATE OF ABORTION RIGHTS IN THE UNITED STATES

Since Roeand Planned Parenthood of Southeastern Pennsylvania, attempts to restrict abortion rights at various levels have ensued, highlighting the continued salience and controversy of the issue. From the passing of Roein 1973 to theend of 2021, 1,338 abortion restrictions have been enacted by states, with 2021 being the year with the most abortion restrictions enacted since 1973.10 Even further, 44% of all post-Roe abortion restrictions have occurred in the past decade alone.11 Abortion restrictions have come in many forms across the states. States have established everything from TRAP laws, and targeted regulations of abortion providers to various types of abortion bans.12 TRAP laws make it difficult for hospitals or other abortion providers to meet their requirements, vastly limiting the number of centers that can provide abortions or discouraging doctors or medical centers from providing them altogether. These laws and their subsequent restrictions aim to limit access to abortion services while not conflicting with Supreme Court rulings on the issue. Additionally, states have gone as far as to place outright bans on abortion. The most notable of these bans come from a ban on elective abortions past six weeks adopted in Texas in September of 2021.13 While 13 states have enacted

9 Jessica Arons, The Last Clinics Standing, American Civil Liberties Union, https://www.aclu.org/issues/reproductive-freedom/abortion/last-clinics-standing (last visited April 6, 2022). 10 Elizabeth Nash, State Policy Trends 2021: The Worst Year for Abortion Rights in Almost Half a Century, December 2021 Policy Analysis (December 16, 2021), https://www.guttmacher.org/article/2021/12/state-policy-trends-2021-worst-yearabortion-rights-almost-half-century. 11 Id. 12 Jessica Arons, The Last Clinics Standing, American Civil Liberties Union, https://www.aclu.org/issues/reproductive-freedom/abortion/last-clinics-standing (last visited April 6, 2022). 13 Elizabeth Nash, State Policy Trends 2021: The Worst Year for Abortion Rights in Almost Half a Century, December 2021 Policy Analysis (December 16, 2021), https://www.guttmacher.org/article/2021/12/state-policy-trends-2021-worst-yearabortion-rights-almost-half-century.

94

bans on abortion between six or eight weeks of pregnancy, Texas’ abortion ban is the only one not to be blocked by the Supreme Court or other state courts.14 Despite states' efforts to actively restrict abortion rights or providers, there have also been efforts to expand access to abortions and reproductive health services in general. In 2017, 21 states expanded or protected access to reproductive health and rights.15 States have adopted measures to expand or protect abortion rights and services. For example, in 2017, Oregon and New York set requirements requiring abortion coverage in private health plans without cost-sharing.16 Although not directly related to abortion rights, one factor that will likely play a significant role in the rulings on Dobbsand other abortionrelated cases that pass through the Supreme Court is the conservative supermajority that exists. The confirmation of Justice Amy Coney Barrett in late 2020 solidified the 6-3 conservative majority of the court.17 Additionally, no actual “swing votes'' exist, leading to a split composition. Only five votes are needed to create a majority ruling, so the existence of a 6-3 conservative majority means it will be easy for conservative rulings to occur. However, public opinion will prevent the Court from going on a run of conservative rulings on heavily partisan issues18. If this were to occur, the public would likely view the justices as being partisan, thus violating what is supposed to be an independent judiciary. It is also important to note that the Supreme Court’s conservative majority will continue to exist even with the nomination and possible appointment of Judge Ketanji Brown Jackson to the Court. If she is confirmed, a left-leaning Justice, Justice Stephen Breyer, will merely be replaced by another left-leaning judge, leaving the liberal-conservative balance of the Court the same.

14 Id. 15 Elizabeth Nash, Policy Trends in the States, 2017, Guttmacher Institute (January 2, 2018), https://www.guttmacher.org/article/2018/01/policy-trends-states-2017. 16 Id. 17 Marcia Coyle, The double-edged sword of the Supreme Court’s conservative majority, National Constitution Center (October 5, 2021), https://constitutioncenter.org/blog/the-double-edge-sword-of-the-supreme-courtsconservative-majority. 18 Id.

95

IV. WHAT IS DOBBS V. JACKSON WOMEN’S HEALTH?

In understanding the implications of the possible rulings in Dobbs v. Jackson Women’s Health, it is essential to understand the background of the case. First, it is important to understand the parties in the case. The plaintiff, Thomas Dobbs, is a State Health Officer of the Mississippi Department of Health. The defendant, Jackson Women’s Health Organization, is the last abortion clinic standing in Mississippi.

Dobbs v. Jackson Women’s Health Organizationbegins with the enactment of the “Gestational Age Act” into state law in March 2018. The law prohibited abortions past the fifteenth week of pregnancy with exceptions for medical emergencies or abnormalities and established that a physician must determine a fetus’ probable gestational age beforeperforming an abortion.19

The day after the law’s enactment, Jackson Women’s Health organization filed a complaint and restraining order against the law in the U.S. District Court for the Southern District of Mississippi. The Court then granted that request based on the Supreme Court’s decision not to allow states to ban abortions before 24 weeks of pregnancy, the point of viability. Thomas Dobbs then appealed the case to the U.S. Court of Appeals for the 5th Circuit, which, in December 2019, affirmed theDistrict Court’s ruling that the ban on abortions was unconstitutional. Finally, Dobbs appealed to the Supreme Court in June 2020 and was granted writ of certiorari in May 2021.

The case is monumental in the realm of abortion rights cases, as it is the first time that the Supreme Court must rule on the constitutionality of a pre-viability abortion ban since Roe v. Wade . 20

19 Dobbs v. Jackson Women’s Health Organization, Ballotopedia, https://ballotpedia.org/Dobbs_v._Jackson_Women’s_Health_Organization (last visited April 17, 2022). 20 Nancy Northup, Dobbs v. Jackson Women’s Health Organization, Center for Reproductive Rights, https://reproductiverights.org/case/scotus-mississippi-abortionban/ (last visited April 17, 2022).

96

V. RULING POSSIBILITIES: CONSTITUTIONAL VS. UNCONSTITUTIONAL

The question presented by the petitioner and accepted to review by the Court is: Whether all pre-viability abortions on elective abortions are unconstitutional21. A ruling that states that pre-viability abortions are constitutional will uphold the ruling in Roe. Because of past Supreme Court cases and recent cases surrounding the issue of pre-viability abortions have deemed them constitutional, a ruling in Dobbsthat aligns with this view is likely. However, a ruling stating that pre-viability abortions are unconstitutional will uphold Mississippi’s “Gestational Age Act” prohibiting virtually all abortions past 15 weeks’ gestational age and effectively overturn Roe v. Wade. The ruling in the case can fundamentally alter abortion rights in the United States. Thus,considering the possible rulings posits two different futures for abortion rights in America.

VI. CONSTITUTIONAL

As aforementioned, a ruling that all pre-viability abortions are constitutional would side with Jackson Women’s Health Organization and uphold Roeand the various other rulings affirmed by Roe . Concerning the individual case, a ruling that all pre-viability abortions are constitutional would be a judgment for Jackson Women’s Health Organization. It would mean that the pre-viability abortion ban set forth by Mississippi’s Gestational Age Act is unconstitutional, allowing for abortions before fifteen weeks of pregnancy. On a larger scale, a ruling that pre-viability, elective abortions are constitutional would affirm the Supreme Court cases that dictate abortion rights today and would likely aid in maintaining the state of abortion rights seen in the U.S. today. This ruling in Dobbs would likely even further uphold the provisions set forth by Roeand later Planned Parenthood of Southeastern Pennsylvania. Because a ruling that pre-viability elective abortions are constitutional would align with pre-existing abortion rights cases and their

21 Dobbs v. Jackson Women’s Health Organization, Ballotopedia, https://ballotpedia.org/Dobbs_v._Jackson_Women’s_Health_Organization (last visited April 17, 2022).

97

rulings, the status quo of abortion rights as protected by Supreme Court cases would be maintained. A ruling that the case is constitutional is likely to be the outcome if past abortion rights rulings and lawsuits similar to Dobbsare examined. Because the case has the potential to overrule some of the past Supreme Court cases that have defined abortion rights in America for decades, namely Roeand Planned Parenthood of Southeastern Pennsylvania, a ruling that Dobbsis constitutional would maintain these court cases. This would further reaffirm these past cases and maintain the general track that abortion rights andrelated cases have been on for decades. Additionally, if court cases concerning the viability and the time frame in which abortions can be performed are examined, the same issues Dobbsaddresses, the outcomes of those cases may mirror the possible ruling in Dobbs. One such case, Isaacson v. Horne, was heard in 2013 by the United States Court of Appeals for the Ninth Circuit.22 The case concerned an Arizona law barring abortion after 20 weeks for fetal pain experienced during abortions that occur after 20 weeks of pregnancy23. Ultimately, the law was ruled unconstitutional as it violated the Supreme Court’s definition of when abortions could be performed in relation to fetal viability. According to the Supreme Court’s rulings on abortion rights up until whenthis case was heard, viability did not occur until approximately twenty-four weeks of pregnancy. Because the question posed by this case was virtually the same question that is being posed by Dobbs today, if the same logic and application of prior SupremeCourt rulings on abortion rights were used to make the ruling in Isaacson, then Dobbswill be ruled constitutional.

VII. UNCONSTITUTIONAL

A ruling that all elective pre-viability abortions are unconstitutional would be a ruling in favor of Dobbs and would likely lead to a mass reform of abortion laws in the United States.

22 Isaacson v. Horne, 716 F.3d 1213 (9th Cir 2013). 23 Id.

98

For the individual case, a ruling in favor of Dobbs would uphold the constitutionality of Mississippi’s Gestational Age Act. Therefore, the time frame for women to receive an abortion will be cut down significantly. On a national level, this ruling would virtually overturn Roe v. Wade and have consequences for other Supreme Court cases involving abortion rights, leading to major changes in abortion laws on the state level and other potential changes. According to Roe, fetal viability occurs at around weeks 23-24 of pregnancy, so for all pre-viability, elective abortions to be unconstitutional in the case of an “unconstitutional” ruling in Dobbswould overturn Roe v. Wade. The nine weeks between the fifteen-week cut-off set by the Gestational Age Act and the approximately twenty-four-week cut-off set by Roe would no longer be a time in which elective, pre-viability abortions are allowed. This would lead to a large shortening of the window in which elective abortions are permitted. Furthermore, this would virtually overturn Roe and all other Court cases affirmed by the ruling in Roe, leading to a mass upheaval in abortion rights protections or restrictions set by Supreme Court cases. A ruling stating that pre-viability abortion bans on elective abortions are constitutional would likely prompt many states looking to increasingly restrict abortion rights to create more restrictive abortion laws than those seen today. According to the Guttmacher Institute, 26 states are certain or likely to ban abortion past that allowed by Roe . 24 Many of these states already have various types of abortion bans in place that courts may block, or many other states such as Florida and Indiana had indicators such as past attempts at this abortion-restricting legislature or political compositions that make them likely to ban abortion if offered the opportunity to by the disappearance of federal protections. This would drastically restrict access to abortions, leaving those seeking abortions to need to travel out of state, possibly increasing long distances to abortion clinics for those who already resided in states with one abortion clinic, like Mississippi.

Beyond just the Supreme Court’s rulings on abortion rights, a ruling that pre-viability elective abortions are unconstitutional couldalso affect

24 Elizabeth Nash, State Policy Trends 2021: The Worst Year for Abortion Rights in Almost Half a Century, December 2021 Policy Analysis (December 16, 2021), https://www.guttmacher.org/article/2021/12/state-policy-trends-2021-worst-yearabortion-rights-almost-half-century.

99

other rulings involving the right to privacy found in the Constitution by the Court. The right to privacy that protects the constitutional right to abortion in the United States also protects rights such as those related to contraception and sexual intimacy.25 Thus, Dobbs shrinking privacy rights regarding abortion could open up the possibility of shrinking other rights that extend from the right to privacy.

CONCLUSION

The question and implications set forth byDobbs v. Jackson Women’s Health Organizationpresent an uncertain future for abortion rights in America. It also echos a larger movement by states to enact abortion restrictions at the state level through various means. The Supreme Court has seen its fair share of court cases questioning the right to abortion, most notably Roe v. Wadeand Planned Parenthood of Southeastern Pennsylvania v. Casey. Various laws on abortion such as bans or other laws that aim to restrict access to abortions are becoming increasingly common in the U.S. Ultimately, the two possible cases ruling in Dobbswill have effects at both the national and state levels as well as effects on the interpretation of the Constitution in general.

25 Mark Spindelman, Mississippi's Originalism: Dobbs v. Jackson Women's Health and the Attack on Sexual Freedom, The American Prospect (October 19, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3945691.

100