The court will struggle, and perhaps mightily, to write an opinion that discards “viability” without overturning Roe. The pro-life justices will be unsatisfied with throwing up any facile or arbitrary line, though, in pursuit of a moderate result that somehow divides elective abortions into coherent categories of those which are constitutionally immune to state bans and those which are not, distinguished by some relevant principle and not by judicial fiat. Perhaps that opinion simply cannot be written.
The Supreme Court announced yesterday that it will decide Dobbs v. Jackson Women’s Health Organization. Dobbs is a Mississippi abortion case that pro-lifers have long hoped—and pro-choicers long feared—that the Court would accept for review. They have held their breaths for an exceptionally long time. The petition for review was filed last June.
Dobbs will be argued sometime after the court’s new term begins on October 4. The decision may come as late as the end of June 2022. Between now and then, myriad friend-of-the-court briefs will be filed. Countless commentators will publish op-eds predicting doomsday scenarios for women’s access to abortion. The Biden Administration will file a brief. Dobbs is going to be the most anticipated Supreme Court abortion decision since 1992, when Planned Parenthood v. Casey reaffirmed Roe v. Wade. And rightly so.
In Dobbs, the Fifth Circuit Court of Appeals struck down a Mississippi law that prohibited abortion, with few exceptions, after fifteen weeks’ gestation. On June 15, 2020, Mississippi filed for review by the Supreme Court. All that we know right now about the justices’ intentions is contained in the Supreme Court’s one-sentence order, published this morning: “The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.” The “petition” was Mississippi’s. “Question 1” is this: “Whether all previability prohibitions on elective abortion are unconstitutional.”
The law currently holds that “viability” occurs about twenty-two weeks into pregnancy. Mississippi is one of several states that have enacted prohibitions on previability abortions in the last few years, expecting lower courts to invalidate them but hoping to breach the “viability” barrier at the Supreme Court. Mississippi defends its law prohibiting “elective” abortions after fifteen weeks mainly because the fetus is by then “likely capable of conscious pain perception.” Other states have prohibited abortion even earlier—some at eight weeks, about the time the fetal heartbeat can be detected.
In this case, “elective” abortions exclude those sought because of “medical emergencies” pertaining to the mother or because of “severe fetal abnormalities.” These elective abortions are not at issue in Dobbs. Rather, the prohibitory remainder is: all other “elective” abortions sought when the fetus is between fifteen weeks’ gestational age and the existing legal point of “viability.”
The “viability” precedent (Roe, rearticulated in Casey) caused the lower courts to block enforcement of Mississippi’s law. The judges of the Fifth Circuit concluded that Supreme Court precedent categorically excluded any such “previability” bans. They were right about the court’s precedents. But those precedents have been wrong.
Indeed, almost forty years ago Justice Sandra Day O’Connor made much the same argument that Mississippi is making now. O’Connor wrote in the 1983 Akron case that “viability” is a wavering, contingent line: “As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.”