A majority of justices may not be inclined to take up this invitation, but that should provide cold comfort to supporters of abortion rights. The court can use the Mississippi case to eviscerate a woman’s right to choose even if it leaves Roe undisturbed.
The United States has been at this precipice before, three decades ago, in Planned Parenthood v. Casey, which Mississippi has also called on the court to overrule. Against the odds, Roe survived, battered and bruised, but in place.
Now, the court has a six-justice conservative majority, and the fact that it agreed to hear the Mississippi case, a challenge to a ban on abortion after 15 weeks of pregnancy that had languished on its docket with no action for eight months, suggests that there are at least four justices eager to revisit the abortion question.
Three of the conservative justices (Samuel A. Alito Jr., Neil M. Gorsuch and Clarence Thomas) have called for Roe to be overruled, and three others (Chief Justice John G. Roberts Jr., Brett M. Kavanaugh and Amy Coney Barrett) have indicated their skepticism of the court’s abortion jurisprudence.
But this might not be the moment for Roe’s demise. The legal challenge comes at an uncomfortable time for the court’s institutionalists, who jealously guard its public reputation and legitimacy. The case will likely be decided in June 2022, just a few months before the midterm elections that could decide control of both houses of Congress. For Roberts, who has lamented perceived efforts to politicize the court, nothing could be less appealing than the prospect of millions of American women marching to the polls eager to make a statement about the loss of abortion rights.
So, what’s a conservative supermajority to do? How can the court continue dismantling abortion rights without making abortion a central issue in the impending midterms?
An answer lies in the court’s own history, and with retired justice Sandra Day O’Connor, who played a pivotal role inbrokering the Casey compromise that “saved” Roe and reaffirmed a commitment to using viability, the point in pregnancy when a fetus can survive outside of the womb, as the threshold marker for when a state may regulate abortion.
But despite her role in Casey, O’Connor had been skeptical of the entire concept of viability. “Potential life,” she observed in 1983, “is no less potential in the first weeks of pregnancy than it is at viability or afterward.” In her view, a state’s compelling interest in protecting potential human life existed “throughout pregnancy.”
Although the court ultimately preserved the right to choose an abortion before viability in Casey, in a 1989 challenge, it echoed O’Connor’s skepticism, musing that there was no reason “why the State’s compelling interest in protecting potential human life should … [come] into existence only at the point of viability.”
O’Connor’s logic could provide the Roberts court with a way to deliver a pro-life victory to Mississippi while avoiding the unappealing (for now) prospect of overruling Roe.
With the seeds of doubt about viability already sown, the court could easily pivot from dismantling Roe to simply jettisoning viability as a salient marker in abortion regulation. If viability no longer stands as the constitutional dividing line for abortion regulations, state laws regulating abortions would be subject only to Casey’s undue burden standard, which upholds abortion restrictions so long as they do not pose a “substantial obstacle” to someone’s seeking an abortion.
Under this regime, Mississippi would likely prevail, as the state’s sole remaining abortion clinic performs abortions only up to 16 weeks. The court may not find it unduly burdensome to further limit the ability to obtain an abortion by just one week.
Given the looming election and the concerns about politicization, discarding viability and upholding Mississippi’s 15-week ban as only a minimal burden on the abortion right is likely the clearest path to a pro-life victory next year. But there would be little for liberals to cheer in such a decision. Eliminating viability would further hobble abortion access in Mississippi, while emboldening other red states to pass ever more restrictive abortion laws.
It would also spark a raft of litigation to determine whether existing laws that ban abortion at 12 weeks, 10 weeks or even six weeks pass constitutional muster — a prospect that would create confusion and further reduce abortion access in states where it has already been severely limited.
Such a decision may avoid the political fallout of overruling Roe, but it would be no victory for reproductive rights. Indeed, the real winner would be the court, which would be spared charges of partisanship and politicization — even as it kicks an ultimate resolution to the abortion question down the road.
And make no mistake: More abortion challenges will follow — and there will be other opportunities to dismantle Roe once and for all. Perhaps the case that obliterates Roe will be a challenge to Texas’s recent law, which prohibits abortion at six weeks and deputizes private citizens to enforce its terms.
Or maybe the final blow will be delivered in a challenge to a “reason” ban, which prohibits abortion if undertaken for purposes of race- or sex-selection or because of a fetal abnormality.
But even if the pending Mississippi challenge is not the final nail in Roe’s coffin, those who favor reproductive freedom should not let down their guard. A decision that discards viability, while ostensibly “saving” Roe from the chopping block, is not a victory; it is a reprieve. And it should unsettle anyone who cares about reproductive rights and justice.
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"Opinion" - Google News
July 24, 2021 at 06:16AM
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Opinion | How the Supreme Court could decimate reproductive rights without overruling Roe - The Washington Post
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