Undermining Roe

Clarke Forsythe, senior counsel at Americans United for Life, was in his home office in Chicago in front of a picture of the Supreme Court when he received a surprising email at 9 a.m. on May 17 from a colleague. It said the high court agreed to take up a question in the abortion case out of Mississippi: Dobbs v. Jackson Women’s Health Organization, about a pro-life law that protects babies from abortion after 15 weeks gestation. Forsythe emailed his wife to tell her the news. With oral arguments due for the fall, Americans United for Life will have to send in court briefs sometime this summer.

The justices had been punting Dobbs for the better part of a year, letting it pend without any indication as to whether they would agree to take it up. With more than 40 other abortion-related cases working their way through the courts, the choice of Dobbs suggests the justices aren’t yet ready to fully overturn the landmark Roe v. Wade. But the case could have significant implications for some of the central pillars of legal abortion in the United States.

Earlier this month, Americans United for Life filed a brief in Box v. Planned Parenthood out of Indiana, about a requirement that abortionists notify parents before a minor receives an abortion. The case would have let the justices rule on regulation of abortion access rather than an outright ban. Taking up Dobbs instead “shows their willingness to address a big issue,” Forsythe said.

The appeal in the case poses three questions, and the court agreed to rule on the first: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” The other two were procedural questions focused on marginal issues: asking which Supreme Court precedent the courts should use to analyze the law and whether abortion providers can challenge a law protecting women.

That first question is in some ways “modest and incremental,” Forsythe said, because it doesn’t ask the court to overturn Roe, which legalized abortion in 1973.

On the other hand, the question gets to the heart of the rule limiting protections for babies who aren’t viable outside the womb, usually around 24 weeks, which Forsythe called “a big pillar under Roe v. Wade.” Scientific advancements have pushed that limit by showing even babies born weeks before the viability cutoff can still become healthy infants. Americans United for Life also notes that the case considers the interest states have in protecting the health of the pregnant mother. A 2004 study by Dr. Linda Bartlett shows that maternal mortality from abortion increases after the 14-week mark.

If the court rules in Mississippi’s favor, it could allow states with even earlier protections—such as bills protecting babies from abortion once they have a detectable heartbeat—to enforce their laws. A favorable ruling would also chip away at legal abortion. “Scholars have shown that when in the past the court overturns a precedent, it sometimes acts in two or three steps,” Forsythe said.

To him, it’s clear that the new Trump-appointed judges, who have a record of leaning pro-life, are the reason why the court agreed to take up this case. “If Justice Kennedy and Ginsburg were on the court, the court would have never taken these cases … because those justices would have considered this issue settled or at least they would have had no willingness to revisit the question,” he said, referring to the two latest Supreme Court justices to leave the bench. “I think it shows the impact of Justice Kavanaugh and Justice Barrett joining the court.”

But that doesn’t guarantee a favorable ruling from the court or even from those two particular judges. The court could decide to send the matter back to the lower courts or make another limited ruling instead of toppling the viability standard or moving to dismantle legal abortion. Whatever the court does, it will have implications for the other 40-some cases currently in the lower courts. “There’s just a lot of uncertainty and a lot of possibilities,” Forsythe said. “And people should have modest expectations about what might happen.”

In the meantime, the best thing pro-lifers can do is continue their work in all areas of politics. What happens in courts and legislatures state-by-state, Forsythe said, “can’t help but influence the Supreme Court in knowing that the public will support its decisions to cut back on or overturn Roe v. Wade and return the issue to the people.”