A perilous new era

During a presidential debate in October 2016, Trump said that, if elected, the Supreme Court would overturn Roe v. Wade.

WALLACE: Do you want to see the court overturn Roe v. Wade?

TRUMP: Well, if we put another two or perhaps three justices on, that’s really what’s going to be—that will happen. And that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court.

In just one term in office, Trump confirmed three justices to the Supreme Court. On Monday, the Supreme Court inched closer to making Trump's pledge a reality. 

The Supreme Court agreed to consider a case called Dobbs v. Jackson Women’s Health Organization. The case, originally filed by the only abortion clinic in Mississippi, concerns a Mississippi law that would ban abortion after 15 weeks, except "except in a medical emergency or in the case of a severe fetal abnormality."

The Mississippi law imposes restrictions on abortion before the fetus is viable outside the womb —- 23 or 24 weeks after gestation. That conflicts with the Supreme Court's ruling in Pennsylvania v. Casey, a 1992 case which upheld Roe and affirmed that "a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”

That's by design. The law was not written to comply with the law. It was written to be a vehicle for the Supreme Court to overturn its 40-year-old precedent and create new law. 

The federal district court judge, Carlton W. Reeves, called out the state explicitly in his decision enjoining the law:  

[T]he real reason we are here is simple. The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade...

With the recent changes in the membership of the Supreme Court, it may be that the State believes divine providence covered the Capitol when it passed this legislation. Time will tell. If overturning Roe is the State's desired result, the State will have to seek that relief from a higher court. For now, the United States Supreme Court has spoken.

Mississippi's law was based on model legislation created by the Alliance Defending Freedom (ADF), a legal group representing the religious right. The legislation is part of its effort to "eradicate" Roe v. Wade. "I am happy to say the first 15-week limitation based on our model language was just introduced in the state of Mississippi this week," ADF senior counsel Denise Burke said in January 2018. Burke added that the plan was to "get these first-trimester limitations in place" and then "go for a complete ban on abortion except to save the life of the mother.”

The traditional role of the Supreme Court is to resolve genuine controversies and clarify ambiguous areas of the law. Here there is no controversy or ambiguity. It is clear that current Supreme Court precedent does not permit Mississippi to ban nearly all abortions at 15 weeks. While it is impossible to predict the outcome, the Supreme Court's decision to consider the case suggests some of its members are prepared to embrace an explicitly political role on abortion. 

Justice Barrett's ties to the group that wrote Mississippi's abortion ban

The last significant abortion case the Supreme Court decided was June Medical Services v. Russo in June 2020. In that case, the Supreme Court struck down a Lousiana law that would "require abortion providers to obtain admitting privileges at a hospital near the clinic where they perform abortions in order to continue to provide them." This is a common tactic by anti-abortion legislators because it is difficult for abortion providers to obtain admitting privileges. There is no evidence, however, that such a requirement improves health outcomes. 

Four Justices — Alito, Gorsuch, Thomas, and Kavanaugh — voted to uphold the Louisiana law. Chief Justice Roberts, who frequently votes to uphold abortion restrictions, cast a decisive fifth vote invalidating Lousiana's law. Roberts, however, had a very narrow rationale for his decision. The Supreme Court invalidated a virtually identical law in the 2016 case of Whole Woman’s Health v. Hellerstedt. Roberts dissented in that case and believes Whole Woman's Health was wrongly decided. But he didn't want the court to reverse itself so quickly. "[T]he question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case," Roberts wrote. 

It's possible, but far from guaranteed, that Roberts could use a similar rationale to strike down Mississippi's 15-week abortion ban. But Roberts no longer has the decisive vote. The late Justice Ginsburg, a staunch supporter of abortion rights, has been replaced by Justice Barrett, a staunch opponent of abortion. 

Barrett also has close ties to ADF, the organization which drafted the Mississippi law. Barrett "was a paid speaker five times, starting in 2011, at the Blackstone Legal Fellowship," a summer program run by the ADF to promote a “distinctly Christian worldview in every area of law." The program aims to teach students "how God can use them as judges, law professors and practicing attorneys to help keep the door open for the spread of the Gospel in America." 

In response to questioning about her association with ADF, Barrett has said that she "would never impose my own personal convictions upon the law."

The Justice Kavanaugh factor

If Roberts decided to abide by Supreme Court precedent and uphold the core holdings of Roe v. Wade, it's likely that Kavanaugh would be the decisive vote. Although Kavanaugh repeatedly claimed he would respect precedent during his confirmation hearing, he also dropped a big hint that he was prepared to overturn Roe v. Wade.

Some of the rights noted in the Constitution are "enumerated." That means they are written right in the text. The First Amendment, for example, enumerates "freedom of speech" as a right. Over time, however, the Supreme Court has recognized some "unenumerated" rights. These are rights that aren't explicitly mentioned in the text of the Constitution, but the Supreme Court has ruled they exist by implication. Unenumerated rights recognized by the Supreme Court include the right to travel, the right to privacy, and the right to contraception. The right to an abortion, established by Roe v. Wade, is another unenumerated right based on the right to privacy.

During his confirmation hearing, Kavanaugh said that "[t]he Supreme Court precedent protects certain unenumerated rights so long as the rights are, as the Supreme Court said in the Glucksberg case, rooted in history and tradition."

Kavanaugh was very clear that this is the test he would apply to all unenumerated rights, which include the right to abortion. "[A]ll roads lead to the Glucksberg test," Kavanaugh added.

In a 2017 speech, however, Kavanaugh explicitly said that Roe v. Wade failed the Glucksberg test.

Of course, even a first-year law student could tell you that the Glucksberg approach to unenumerated rights was not consistent with the approach of the abortion cases such as Roe v. Wade in 1973 — as well as the 1992 decision reaffirming Roe, known as Planned Parenthood v. Casey.

So Kavanaugh does not think this is a close call. He believes that "even a first-year law student" would understand that Roe v. Wade does not pass the Glucksberg test.

It is, of course, possible that Kavanaugh changes his mind or the court finds a way to punt the issue. But it appears we are at the beginning of a perilous new era of abortion politics. 

The Supreme Court will hear arguments in Dobbs v. Jackson Women’s Health Organization this fall and a decision is expected in the spring or summer of 2022.