U.S. Supreme Court
There is little doubt that October 2021-2022 term will be most remembered for its decisions about state laws imposing restrictions on abortion. In November, the U.S. Supreme Court heard oral arguments in two cases—Whole Woman’s Health v. Jackson and United States v. Texas—that involved a Texas law prohibiting abortions after about the sixth week of pregnancy. On Wednesday, the court will hear oral arguments in Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law prohibiting abortions after the 15th week of pregnancy.
No legal issue in the United States is more divisive than abortion. The court’s ruling in these cases will profoundly affect the lives of millions of women. The decisions also are sure to have dramatic effects on elections in 2022 and 2024 and beyond.
How we got here
In 1973, in a 7-2 decision, the Supreme Court in Roe v. Wade held that state laws prohibiting abortion violated women’s right to privacy, which is protected under the due process clause. At the time, 46 of 50 states prohibited all or almost all abortions. In an opinion by Justice Harry Blackmun, the court said restrictions on abortion need to meet strict scrutiny. The court concluded that a state had a compelling interest in prohibiting abortions only after viability, the time at which the fetus can survive outside the womb.
In the 1980s and early 1990s, the Supreme Court became significantly more conservative as President Ronald Reagan appointed four justices—Sandra Day O’Connor, William Rehnquist, Antonin Scalia and Anthony Kennedy—and President George H.W. Bush picked two, Clarence Thomas and David Souter. All at the time were thought to be possible or even likely votes to overrule Roe v. Wade.
To the surprise of most, in 1992, in Planned Parenthood v. Casey, the high court did not overrule Roe. Justices O’Connor, Kennedy, and Souter wrote a joint opinion reaffirming “the essential holding” of Roe: States cannot prohibit abortion prior to viability. They said, though, that government regulation of pre-viability abortions would be allowed so long as it did not place an undue burden on access to abortions.
In other words, no longer was strict scrutiny to be used in evaluating government restrictions on abortion. Justices Blackmun and John Paul Stevens were the other votes in the majority, they and would have continued to use strict scrutiny in evaluating restrictions on abortions. There were four dissenters—Chief Justice Rehnquist and Justices Byron R. White, Scalia and Thomas—who urged the immediate overruling of Roe.
For the last 29 years, the constitutional law regarding abortion has been settled: The government cannot prohibit abortions prior to viability but can regulate pre-viability abortions so long as there is not an undue burden on the right. The cases over the last three decades have focused on whether particular laws are an unconstitutional undue burden.
For example, in Stenberg v. Carhart in 2000, the court declared unconstitutional a state law prohibiting so-called partial-birth abortions, forbidding the removal of a fetus or a substantial part of a fetus with the intent of ending the fetus’ life. But in Gonzales v. Carhart, seven years later, the court, 5-4, upheld the federal Partial-Birth Abortion Ban Act. The key difference was that in the interim Justice O’Connor, who had been in the majority in Stenberg, had been replaced by Justice Samuel A. Alito Jr., who voted the opposite way.
In 2016, in Whole Woman’s Health v. Hellerstedt, the court, 5-3, struck down a Texas law that imposed restrictions on abortion by requiring that a doctor performing an abortion have admitting privileges at a hospital within 30 miles and that there be surgical-quality facilities wherever abortions occurred. Justice Stephen G. Breyer wrote for the majority and was joined by Justices Kennedy, Ruth Bader Ginsburg, Sonia M. Sotomayor and Elena Kagan in finding that the law was an unconstitutional undue burden on the right to abortion.
In 2020, in June Medical Services v. Russo, the court, 5-4, declared unconstitutional a Louisiana law that, like the Texas law that had been struck down, required that a doctor performing an abortion have admitting privileges at a hospital within 30 miles. Justice Breyer wrote a plurality opinion, joined by Justices Ginsburg, Sotomayor and Kagan. Chief Justice John G. Roberts Jr. concurred in the judgment and said that although he disagreed with the decision in Whole Woman’s Health v. Hellerstedt, he felt obligated to follow precedent. Justices Thomas, Alito, Neil M. Gorsuch and Brett M. Kavanaugh dissented.
Since then, Justice Ginsburg died and was replaced by Justice Amy Coney Barrett, who as a law professor urged the overturning of Roe and as a federal court of appeals judge voted to uphold restrictions on abortion. In fact, since Whole Woman’s Health was decided in 2016, three new justices have joined the bench, all appointed by President Donald Trump: Gorsuch, Kavanaugh and Barrett. The crucial question is whether there are now five or maybe even six votes to overrule Roe v. Wade.
The Texas litigation
Texas adopted a law, Senate Bill 8, which prohibits abortion once the fetal heartbeat can be detected, which is about six weeks after a woman’s last menstrual period. It thus prohibits abortions significantly before viability (which is about the 24th week of pregnancy) and before many women even know that they are pregnant.
The Texas law is not enforced by state or local government officials; it instead authorizes civil suits against doctors who perform abortions or against those who aid or abet abortions. The law went into effect Sept. 1, and on that day, the Supreme Court, 5-4, refused to issue a preliminary injunction against it. A short per curiam opinion said that there was an unusual procedural dimension to the law in that it was enforced by private civil suits and not by government officials. Chief Justice Roberts and Justices Breyer, Sotomayor and Kagan vehemently dissented and would have enjoined the law.
After the court refused to enjoin the Texas law, the United States government filed suit to strike down Senate Bill 8. A federal district court ruled that the United States government had standing and the legal authority to sue, and it issued a preliminary injunction. The New Orleans-based 5th U.S. Circuit Court of Appeals, 2-1, stayed the district court’s order pending briefing and oral argument, thus allowing the Texas law to go back into effect.
On Oct. 22, the Supreme Court granted review in both cases and heard oral arguments Nov. 1. Whole Woman’s Health v. Jackson involves whether state officials can be sued to enjoin an unconstitutional state law if they play no role in enforcing it. United States v. Texas concerns whether the United States government may sue to challenge a state law that infringes constitutional rights.
It is important that both of these cases involve who may sue to challenge a state law that violates the Constitution; neither poses the question of whether the Texas law is unconstitutional. It also is significant that the court has allowed the Texas law to remain in effect since Sept. 1 even though it is blatantly unconstitutional under Roe and Casey.
Dobbs v. Jackson Women’s Health Organization
By contrast, Dobbs directly puts the future of Roe v. Wade before the court. The Mississippi law prohibits abortions after the 15th week of pregnancy, significantly before viability. The Supreme Court granted review on one question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
There are several possible outcomes to the case. One is that the court could follow precedent and strike down the Mississippi law, which is clearly unconstitutional under Roe and Casey. This would be a dramatic defeat for anti-abortion activists who believe that with the three Trump appointees to the court that they now have a majority to overrule Roe v. Wade.
Or the court could uphold the Mississippi law allowing states to ban abortion after the 15th week of pregnancy but not express an opinion on whether to entirely overrule Roe or on the constitutionality of laws that prohibit abortion even earlier, such as at the sixth week of pregnancy or from the time of conception.
Or the court could overrule Roe, something conservatives have wanted to do for a half-century. If that occurs, the issue of abortion will be left to the political process, and each state will decide for itself whether to permit or ban abortions. Also, there then would be efforts to have a federal law, with abortion rights activists pushing for a statute protecting a right to abortion for the entire country, and abortion rights opponents seeking one forbidding all abortions.
Neither reaffirming nor overruling Roe will end the controversy over abortion. There is no middle ground between those who believe women should have the right to control their bodies and choose whether to terminate a pregnancy and those who believe abortions are murders. Nor will anything the Supreme Court says end abortions in the United States. But what the court does in these cases will dramatically affect many women’s lives, the future of constitutional law and the focus of election campaigns for many, many years to come.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014) and The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020). His latest book is Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights (Liveright, 2021).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.