By: Madison Benson
In the last year, anti-abortion advocates have taken a new approach to changing abortion laws. The previous approach, utilized by leaders like George W. Bush, encouraged anti-abortion allies to garner more public support before pushing new, restrictive laws.[1] The new approach wants to take advantage of the conservative-majority Supreme Court, despite ongoing public division. In December 2021, the Supreme Court heard two separate abortion cases, and the rulings are expected this summer.[2] Both of these cases pose a serious threat to current Supreme Court precedent on abortion rights. While the Texas law has a more dramatic impact, the Mississippi law is more likely to be upheld, and thus more likely to cause longstanding harm.
The Texas law at issue allows for private citizens to sue abortion clinics or anyone who “facilitates” an abortion after six weeks.[3] The law is written in a way that allows the legislature to sidestep Court rulings. Thus, states can effectively ban certain conduct using a chilling effect; the fear of an expensive lawsuit prevents people from acting.[4] In Texas, this law has already been highly successful: women who want to have an abortion after six weeks are forced to either carry to term or go to another state for the procedure.[5] The law was challenged when it was passed, but the Supreme Court declined to issue a preliminary order which would have blocked the law from taking effect.[6] Anti-abortion leaders saw this as a win, and hope that the law itself will be upheld.[7] This, however, is unlikely because the Court is not likely to uphold a law which allows states to ignore its rulings on constitutional rights.
The Mississippi case, Dobbs v. Jackson Women’s Health Organization, seeks to ban most abortions after fifteen weeks of pregnancy.[8] This law directly challenges the precedent set by Planned Parenthood of Southeastern Pennsylvania v. Casey, which states that abortions cannot be banned before fetus viability.[9] The general medical consensus is that viability occurs around twenty-two to twenty-four weeks.[10] Upholding the Mississippi law would reverse the viability standard and create a new standard which would allow for more restrictive abortion laws in states.
However, slowly chipping away at abortion rights is not new. Abortion rights were at their strongest across the nation between 1973 and 1992.[11] In 1992, the Supreme Court began to weaken the right with the plurality opinion in Casey. The Court eliminated the trimester framework set up in Roe and replaced it with the viability standard. Additionally, the Court determined that legal obstacles to obtaining an abortion were constitutional so long as they did not create an “undue burden.”[12] An undue burden includes spousal consent laws. However, requiring parental consent, 24-hour waiting periods, and the provision of materials with alternative options are not “undue burdens.”[13] Thus, eliminating the viability standard and replacing it with a new standard which allows for more restrictive abortion laws would be the next step in this process.
The Supreme Court is taking away an established constitutional right. Since the Court recognized this right—as a right under the right to privacy which is derived from the “penumbral emanations” of the Constitution[14]—it has been under attack. If the Court finds in favor of Mississippi in the upcoming case, then the nation would essentially be in the same position it was in prior to Roe. Each state would have freedom to decide the restrictiveness of its abortion laws. No other established right has been so quickly and easily restricted by the Court. If the Court decides that a fifteen-week ban is constitutional, then women across the country will have vastly different access to this healthcare right depending on which state they reside in and their financial ability to travel to another state for the procedure.
This all seems discouraging, but a ruling from the Supreme Court is not necessarily a death sentence for abortion rights. Individuals must continue to fight and vote in their local elections to prevent states from enacting restrictive laws. It is important to remember, and to remind others, that abortion rights are not just a women’s issue. Abortion is an issue which affects our entire society, both financially and emotionally. Thus, even if the Court decides to allow restrictive laws, that does not mean that states have to pass these laws. The best thing we can do is to wait for the ruling and never stop voting.
[1] https://www.npr.org/sections/health-shots/2022/01/21/1074605184/abortion-roe-v-wade-supreme-court
[2] https://khn.org/news/article/supreme-court-conservative-justices-seem-poised-to-overturn-roe-v-wade-abortion-rights/
[3] https://www.cnn.com/2022/01/22/politics/texas-supreme-court-roe-abortion/index.html
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] https://khn.org/news/article/supreme-court-conservative-justices-seem-poised-to-overturn-roe-v-wade-abortion-rights/
[9] Id.
[10] Id.
[11] Roe v. Wade, 410 US 113 (1973); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992).
[12] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992).
[13] Id.
[14] Roe v. Wade, 410 US 113 (1973).
Madison (she/her) graduated from Arizona State University with a B.A. in Communication and a minor in Spanish Language Studies. She is currently a 2L at Sandra Day O’Connor College of Law and she plans on working in criminal law after passing the bar exam. Her interests within the topic of social justice include gender and bodily, criminal justice, autonomy, and the death penalty.
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