On Monday, we heard the rumblings of a judicial earthquake. The Supreme Court announced that next term it will hear Dobbs v. Jackson Women's Health Organization, a suit regarding Mississippi's ban on abortions after 15 weeks.
We should not mince words: This case is a big deal. The case will receive the most popular attention a Supreme Court case has received since the first Obamacare decision in 2012.
To understand why, we must review the current status of abortion precedent. Since its 1992 decision in Planned Parenthood v. Casey, the Court has held that fetal viability is a hard line for regulating abortion. After the unborn child can survive outside the womb, governments have the capacity to ban abortion so long as they provide certain "health" exceptions.
But before viability, the possibilities for legal restraint are much more limited. Laws may regulate for a woman's health. They may seek to persuade the woman not to abort. But laws cannot stop a woman from aborting her unborn child—or even place an "undue burden" on her pursuit of that goal.
Since Casey, abortion litigation has worked within this framework. Even when regulations have survived lawsuits, such as the national ban on partial-birth abortions, they have only been declared consistent with Casey by still providing for some way to end non-viable pregnancies.
The Dobbs case does not tether itself to Casey. Regarding the Mississippi law, the Court will consider "[w]hether all pre-viability prohibitions on elective abortions are unconstitutional." In other words, the Court could reconsider the central component of the Casey framework itself. And to uphold the Mississippi law, the Court would need to question that part of Casey. It would be hard to argue that fetal viability exists at 15 weeks, even as viability has moved earlier and earlier with ever-greater medical advances.
In deciding Dobbs, the Court could go in at least one of three directions. It could affirm Casey and hold that bans like Mississippi's on pre-viability abortions violate the Constitution. That outcome likely would shut off any fundamental challenge to the Court's abortion framework for at least a generation (as Casey did on challenges to Roe v. Wade, the 1973 case first declaring an individual constitutional right to abortion).
Next, the Court could go to the opposite side and overrule both Casey and Roe. That majority likely would reason along the lines of the late Justice Antonin Scalia's dissent in Casey. Scalia's opinion said that states should possess wide latitude on regulating abortion, including near-outright bans and near-outright permission.
Finally, and most complicated, the Court could go somewhere in-between, upholding both Casey and the Mississippi law. To do so, the justices would need to lean on two points made in Casey. First, Casey itself claimed not necessarily to uphold Roe v. Wade entirely, but rather to affirm "the essential holding" of Roe. In doing so, the justices upheld a woman's right to an abortion, the states' interest in the unborn and state power to regulate abortion so long as it does not not violate a woman's abortion right. But Casey altered the framework for assessing a woman's right versus the state's interest in unborn life, moving from Roe's distinction between a pregnancy's trimesters to the aforementioned viability threshold. The Court could make a similar move here, affirming the "essential holding" of Casey but changing the framework to move the line earlier when states can regulate or ban abortion.
Alternatively, the Court could justify this move by appealing to the weak way in which Casey defended its viability line. Beyond the appeal for many of affirming precedent, the Court admitted that many problems existed with that line. But, the Court added in defense, "there is no line other than viability which is more workable." Yet with the growth of medical technology, the clarity of viability as a line no longer holds. Moreover, the same medical advances have presented other possible legal lines, such as fetal pain or fetal heartbeat. The Court could easily say that it merely found a more suitable line 30 years later.
Of course, we won't know where the Court will go until it decides. And that likely will not come until June 2022. But make no mistake, the judicial earthquake is coming. It may raze Roe and Casey, it might merely damage them or it could rock those hoping for their downfall. Regardless, the case will be among the biggest the Court decides in a generation.
Adam Carrington is an associate professor of politics at Hillsdale College. He is currently at Princeton University's James Madison Program as a Garwood visiting fellow.
The views expressed in this article are the writer's own.
