In May 2021, the United States Supreme Court agreed to hear yet another case testing the limits of a State’s ability to regulate abortion under Roe v. Wade, the 1973 precedent that invalidated all State laws that had prohibited abortion in all circumstances.
In Dobbs v. Jackson Women’s Health Organization, the Court has agreed to consider a single question related to the State of Mississippi’s law banning abortion (with rarely occurring exceptions) after the fifteenth week from a woman’s last menstrual period: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
The case will be heard sometime in the Court’s October 2021 term, and most likely decided in June 2022.
The question is important for at least two reasons—the first concerning the result that might obtain, and the second concerning what result will not obtain.
First, Dobbs tests the controlling principles from Roe and the 1993 case, Planned Parenthood v. Casey. In Roe, the Court held, among other things, that a state has no legitimate interest in regulating access to abortion prior to the viability of the fetus. The implication, of course, is that no law may stand that prohibits abortion prior to viability, which the Court determined is a matter of the privacy rights of the woman.
After viability, Roe reasoned, the state and the woman have competing interests, but the strong presumption is that the woman’s privacy interested will prevail. The companion case of Doe v. Bolton made that presumption nearly absolute by making a woman’s health—broadly defined as “physical, emotional, psychological, familial, and the woman’s age”—the controlling consideration.
In Casey, the Court further refined the reasoning, holding that a state could not institute laws that place an “undue burden” on a woman who seeks an abortion after the viability of the fetus. The question of pre-viability was not visited in Casey, which is why Dobbs is even more important than that case. If the Court decides that a state may prohibit abortion prior to viability, it will necessarily have to figure out what to do with Roe.
Will it refine or limit Roe? Will it vacate Roe and use Dobbs as the opportunity to start over on abortion adjudication?
This brings us to a consideration of the result that will not obtain, regardless of what the Court decides in Dobbs. Let’s say that the Court reaches the unlikely but not implausible decision to vacate Roe. Would this make abortion illegal in the United States? No. Rather, vacating Roe would do nothing more than to grant the fifty states significantly broader ability to regulate abortion, from passing laws that effectively make abortion inaccessible to those that make abortion on demand an absolute right.
In other words, vacating Roe would probably restore the status quo ante Roe, not in the substance of states’ laws prior to Roe, but rather with respect to states’ authority to regulate abortion. Under this scenario, abortion access in many states would be effectively eliminated even if their laws do not proscribe all abortions. In many other states, abortion will be as accessible (if not even more so) as it is now.
Some states would make access to abortion so restrictive that no abortion clinic would be able to do business there. For example, Mississippi has only one abortion clinic. If the Court decides that Mississippi’s law may stand, that clinic will almost certainly shutter. Several states, including Kentucky, Louisiana, Missouri, Tennessee, and Utah, have “trigger laws” in place, which would institute legislation similar to Mississippi’s if the answer to the Dobbs question is no.
Others have passed legislation that prohibit abortions as early as six weeks after the last menstrual period, but which have been temporarily enjoined by lower federal courts. Vacating Roe would allow these laws to take effect. Finally, some states would simply start enforcing laws that have been on the books since before Roe, but which have not been enforceable under it.
But several states (California and Washington, for example) still have very liberal pre-Roe laws on the books. Others, such as New York, Connecticut, Massachusetts, and Virginia, have more recent laws, allowing abortion on demand, in some cases up to the moment of birth. Still other states have their own version of “trigger laws” that will effect the opposite result of those described above if Roe is vacated, instituting legislation permitting broad access to abortion.
If the Court in Dobbs were to vacate Roe, none these pro-abortion statutes would be affected.
To some degree, this means that the abortion wars will shift from the federal courts to states’ legislatures. People on either side will pressure their legislatures to codify their wills. The federal question will not be over, however. If Roe is vacated, abortion opponents are ready to shift from defense to offense, pressing federal courts to protect unborn life in all states under the “equal protection” clause of the Fourteenth Amendment to the U.S. Constitution. Such legal philosophical luminaries as John Finnis have made that case, and activists are ready to press it.
In other words, if the answer to the question in Dobbs is “no,” as it may very well be, abortion law in the United States will get murkier before it gets clearer.
Kenneth Craycraft is a licensed attorney and the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary and School of Theology, the seminary for the Archdiocese of Cincinnati. He holds the Ph.D. in theology from Boston College, and the J.D. from Duke University School of Law.
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