SCOTUS Agrees To Hear An Abortion Case Next Term Designed To Overturn Roe v. Wade

Supreme Court reporter Mark Joseph Stern reports that Project Blitz: The Christian Nationalist Attack on America today has finally achieved its long-desired goal of getting a test case before the U.S. Supreme Court which directly challenges Roe v. Wade (1973). A Supreme Court stacked by Republicans with conservative activist judges favorable to this anti-abortion position, all too frequently disregards stare decisis and established precedent. The Supreme Court Is Taking Direct Aim at Roe v. Wade:

On Monday morning, the Supreme Court announced that it will reconsider the constitutional prohibition against abortion bans before fetal viability. This decision indicates that the ultra-conservative five-justice majority is prepared to move aggressively against Roe v. Wade rather than tinker around the edges of abortion rights. The court will take on state laws that seek to outlaw abortion at early—and perhaps all—stages of pregnancy. It seems likely that the justices took this case for the express purpose of overturning Roe and allowing the government to enact draconian abortion bans that have been unconstitutional for nearly half a century.

Dobbs v. Jackson Women’s Health Organization, the case that SCOTUS took up on Monday, is not a subtle threat to Roe. It is, rather, a direct challenge to decades of pro-choice precedent. In 2018, Mississippi passed a law forbidding abortions after 15 weeks. This measure had two purposes: to restrict abortion, yes, but also to contest Supreme Court precedent protecting abortion rights. In Roe and later decisions—most notably Planned Parenthood v. Casey—the Supreme Court held that the Constitution forbids bans on abortion before the fetus has achieved viability. Since there is no doubt that, at 15 weeks, a fetus is not viable, even with the most heroic medical interventions, Mississippi’s law was clearly designed as a vehicle to let SCOTUS reevaluate (and reverse) Roe.

The lower courts understood this plan. Judge James Ho, a very conservative Donald Trump nominee, all but endorsed it when the case came before the 5^th U.S. Circuit Court of Appeals. Ho urged the Supreme Court to overturn Roe—while acknowledging that, as a lower court judge bound by precedent, he could not uphold Mississippi’s abortion ban. Now the justices have vindicated Ho by accepting Mississippi’s invitation. (The court will hear arguments in the case next fall and issue a decision by the summer of 2022.) It is not difficult to guess what will happen next. But it is worth pointing out three reasons why the Supreme Court appears poised to seize upon Dobbs to eviscerate the constitutional right to abortion.

First, there is no split between the lower courts on the question presented in Dobbs. The Supreme Court typically takes up cases that have divided courts of appeals so the justices can provide a definitive answer that applies nationwide. Here, however, no court has claimed that, under current precedent, a state may outlaw abortions at 15 weeks. Even Ho had to admit that binding precedent “establishes viability as the governing constitutional standard.” There is no reason for the Supreme Court to hear Dobbs unless it wants to abolish this standard, which has been the law of the land for almost 50 years.

Second, Mississippi gave the justices several options for a more limited ruling; its petition to the court included a question that would’ve let the court modify the standard for abortion restrictions without overtly killing off Roe. But the justices rejected that alternative and agreed to consider the central question in the case: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”

This action suggests that the conservative majority is no longer interested in gradually eroding abortion rights until they are, in reality, nonexistent. This strategy has guided the anti-abortion movement for decades. It has resulted in laws that shutter abortion clinics under a bogus pretext, compel doctors to read anti-abortion propaganda, force women to undergo ultrasounds and waiting periods, and forbid abortions for specific reasons, like fetal disability. After the confirmations of Justices Brett Kavanaugh and Amy Coney Barrett, the conventional wisdom dictated that the Supreme Court would begin to uphold these laws, chipping away at Roe until it became a hollow promise. But the new conservative majority is not waiting for these half-measures to reach the court; with Dobbs, it has gone for the jugular. Roe itself is on the table.

Third, and relatedly, Barrett’s impact on this case cannot be understated. Just last summer, the Supreme Court struck down laws targeting abortion clinics in Louisiana by a 5–4 vote, with Chief Justice John Roberts joining the liberals (with qualifications) to affirm the bottom-line rule that states may not place an “undue burden” on the right to abortion before viability. Less than three months later, Justice Ruth Bader Ginsburg died, and Trump put Barrett—a foe of abortion rights—in her seat. By doing so, Trump shored up a far-right five-justice majority that, by all appearances, is committed to ending Roe.

It seems that the justices struggled with the decision to take up Dobbs. The court has been sitting on the case since September 2020, when Ginsburg was still alive. It rescheduled and relisted Dobbs for more than eight months, a nearly unprecedented amount of time. This dawdling probably signifies a battle behind the scenes, with the liberal justices lobbying their conservative colleagues—Kavanaugh and Barrett in particular—to stay out of the abortion debate for the good of the court. It takes four votes to grant a case, and Roberts obviously has little taste for abortion disputes. So, we can deduce that either Kavanaugh, Barrett, or both ultimately decided it was time to take on Roe.

In doing so, the court went for broke. While Mississippi’s law bans abortion after 15 weeks of pregnancy, the question presented is broader: It asks whether all pre-viability abortion bans are unconstitutional. By taking up this question, the court gave itself the power to issue a decision that goes well beyond Mississippi’s 15-week ban. If the conservative justices overturn precedents forbidding pre-viability bans, it will be open season on abortion in red states across the country. Eight states have passed “heartbeat” bills banning abortion after six weeks, while three have enacted legislation outlawing abortion from the start of pregnancy. If SCOTUS authorizes pre-viability bans in Dobbs, it may well open the floodgates, effectively greenlighting more extreme laws in the process.

Pre-Roe abortion law in Arizona:

“Roe v. Wade being overturned is a very real threat,” said Eloisa Lopez, executive director of the Abortion Fund of Arizona. “It’s an even more frightening threat to Arizona specifically because we do have a law pre-Roe v. Wade that would criminalize abortion, criminalize anyone performing an abortion, criminalize people seeking abortions, and criminalize certain forms of birth control.”

Under Arizona’s pre-Roe ban, anyone who provides a woman with an abortion faces a mandatory minimum sentence of two years in prison but could also receive up to five years in prison. Any woman who gets an abortion will be sentenced to at least one year in prison but could face up to five years as well. And even advertising abortion services is a misdemeanor under the pre-Roe ban.

“What’s going to happen on an extreme level is every miscarriage that happens naturally on its own is going to get scrutinized,” said Lopez. “It will get questioned. Did you abort your pregnancy?”

Arizona already has some of the strictest abortion laws in the country. Besides the pre-Roe ban, Arizona bans the use of telemedicine to administer medical abortions, only allows physicians to administer abortions, and requires women seeking abortions to wait 24 hours between the initial appointment and the abortion. Prohibiting other healthcare providers, like physicians assistants, from administering abortions reduces the number of people available to provide abortions in the state, and banning telemedicine requires women to travel long distances to one of the handful of remaining clinics that provide abortions.

Together, these restrictions make it extremely difficult for many women in Arizona to obtain an abortion. “If you live in rural Arizona, you have to travel elsewhere to obtain an abortion,” said Lola Bovell, executive director of Planned Parenthood Advocates of Arizona. “Then you have a 24-hour waiting period. That’s a lot of travel time, and you have to take off work, stay at hotels, pay for food and travel. It creates this additional barrier that’s absolutely unnecessary.”

The constitutional right to terminate a pregnancy is now under more severe and imminent threat than it has been at any time since Roe was decided in 1973. By June 2022, Roe v. Wade may very well be overturned by this conservative activist court which routinely disregards stare decisis and established precedent.

Our current Arizona Republican governor and Republican-controlled legislature will bow to pressure during an election year from Arizona’s unelected “31st senator,” Cathi Herrod of the Center For Arizona Policy, and will immediately declare that Arizona’s pre-Roe law criminalizing abortion and abortion providers is now an enforceable law again.

Judicial activism and overturning Roe v. Wade will be major issues in the 2022 election. Start campaigning on these issues now.

UPDATE: 

After Supreme Court takes up case about Mississippi's 15-week abortion ban, Psaki says President Biden is "committed to codifying" Roe v. Wade as law regardless of the case's outcome https://t.co/efnmUGH0mw pic.twitter.com/kZBDQi1Os4

— CBS News (@CBSNews) May 17, 2021

A Democratic Congress has yet to repeal the Hyde Amendment, despite explicitly calling for a repeal of the Hyde Amendment in the Democratic Party platform. It would be a good idea to codify Roe v. Wade into law  before the U.S. Supreme Court hears oral argument next year in Dobbs. Get ready for a new legislative fight.