The State of Mississippi has asked the Supreme Court to overturn Roe v. Wade, the 1973 case that says the government does not have the power to ban abortions on fetuses within the first trimester of gestation. Roe was eventually modified by Planned Parenthood v. Casey in 1992; Casey moved the abortion clock away from the trimester approach toward one of viability: if the fetus can live on its own outside the womb, then abortion can be banned by the government.
The question presented by Mississippi’s brief in the current challenge, Dobbs v. Jackson Women’s Health, is blunt: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
The state frames its legal argument in a 60-page brief by asking the court to completely jettison its way of examining abortion laws:
On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight. Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational basis review that applies to all laws.
The State of Mississippi, now that Justice Amy Coney Barrett is on the Supreme Court, is asking the conservative majority to rubbish the way previous Courts have judged abortion laws for nearly fifty years. And the state’s proposed framework — rational basis review — is not the way the Court has in the past examined abortion regulations.
Rational basis review is the standard of review for most laws. If a statute passed by a state is challenged in court, and the statute does not involve a “fundamental right” (something granted by the U.S. Constitution) or a “suspect classification” (e.g., racial discrimination), then the courts will generally allow the law to stand.
But abortion has since 1973 been viewed by the court as a “fundamental right” which triggers a higher level of judicial scrutiny and, therefore, the striking down of state attempts to interfere with individual choice. As the Supreme Court wrote in Roe (citations omitted):
Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest[]” . . . and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.
Mississippi is asking for that entire framework to be swept away. Abortion is currently a “fundamental right” which (in this area of law) triggers an “undue burden” analysis — in other words, the government cannot place an “undue burden” on a mother’s ability to obtain an abortion if she and she alone so chooses. Shifting abortion to “rational basis” review would mean that virtually any state regulation of the procedure would be allowed to stand — in other words, the government, not individual women, would make choices about their reproductive capacity once pregnant.
The state’s brief continues:
This case is made hard only because Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), hold that the Constitution protects a right to abortion. Under those cases, a state law restricting abortion may not pose an “undue burden” on obtaining an abortion before viability. 505 U.S. at 877 (plurality opinion). And “[b]efore viability,” this Court has said, a State may not maintain “a prohibition of abortion,” id. at 846—despite the State’s “important interests” in protecting unborn life and women’s health, Roe, 410 U.S. at 154. Both courts below understood Roe and Casey to require them to strike down Mississippi’s Gestational Age Act because it prohibits (with exceptions for life and health) abortion after 15 weeks’ gestation and thus before viability.Roe and Casey are thus at odds with the straightforward, constitutionally grounded answer to the question presented. So the question becomes whether this Court should overrule those decisions. It should. The stare decisis case for overruling Roe and Casey is overwhelming.
Stare decisis — “to stand by things decided” — is judicial shorthand for respecting previous issues. Any law student sitting for a final exam, and any law student hoping to pass the bar, would note that the cleanest and most logical answer to the question of stare decisis is to let Roe and Casey stand. But Mississippi is proffering an answer that would not win a student any points on an exam.
“Roe and Casey are egregiously wrong,” the state goes on to assert. “The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.”
The Mississippi brief rehashes old arguments that were long ago hashed out in both Roe and Casey involving the “history” of abortion in the United States.
If the Supreme Court accepts the state’s arguments, then a seismic shift in abortion law will ensue. It will be the legal equivalent of the historic flip of the magnetic north and south poles of the earth.
Read the full brief below:
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