THE FIGHT OVER ROE V. WADE: DOBBS V. JACKSON

Every law student studies Constitutional Law in his first year.  Due process, the Commerce Clause, the relationship between the federal government and the individual states, the Bill of Rights, all these and more are covered, and all have more or less a thread of consistency that ties each branch of Constitutional Law in a series of cases which build upon each other as time passes.  We call these consistent threads "precedent."  That is, once a thing is finally decided, so it shall be the law of the land until some thunderbolt from heaven declares the precedent was, for some reason, a crock of h****s***.  

The Dred Scott decision comes to mind, as does the infamous Plessy v. Ferguson that upheld racial segregation as a perfectly acceptable practice, because "separate but equal" treatment of the races was just ok with the Court.  Both of these cases were decided as precedent and the law of the land and to be set in stone until later, more enlightened Supreme Court decisions declared them h****s***.

In all of Constitutional Law, however, there is one case that cannot be taught as building upon any precedent whatsoever, and which makes sense only to those who support the final outcome.  That decision is Roe v. Wade, the case which established the right of a woman to choose whether or not to abort her baby.  Roe is the first Constitutional Law case decided based on a law clerk's visit to a medical school library.  Roe is the first Constitutional Law case to decide the U.S. Constitution contains guarantees to a "right to privacy."  Roe is the first Constitutional Law case to enlighten Americans that the Constitution contains a "penumbra" of rights under the Constitution which are not listed within the document.  Roe is the first Constitutional Law case to decide women are guaranteed the right to obtain an abortion, although the right is not unlimited.  Roe is the first Constitutional Law case to mention "viability" as a potential turning point, a limit, upon a woman's unrestricted right to obtain an abortion.

The Court ruled that, until the fetus reaches viability, the ability to survive outside the womb, the mother's right to kill the fetus overruled the right of the fetus to continue to live.

All that new stuff was contained in one case, a case that literally turned Constitutional Law upon its head to reach a particular result.  There is no other way to describe Roe, whether you approve or disapprove of its decision.

Many pro-life advocates familiar with Roe have had the misguided view that, as science advanced and the date a fetus became viable outside the womb, the number of weeks during which a woman can terminate her pregnancy would become less and less.  Doe v. Bolton, a case determined mere months after Roe, decided that the viability date would not apply to cases in which the mother's health was impacted by her decision whether to kill the in utero child.  While that sounds compassionate and reasonable, as no one would want the State to force a mother to die in childbirth, abortion advocates have convinced pro-abortion courts that a mother's mental health is included in the language of Doe.  In other words, if a mother is concerned that having the baby will result in her experiencing post-partum depression, a common result of childbirth, that would be justification enough to allow abortion at any stage.

Doe v. Bolton is the actual case that allows unrestricted access to abortion on demand in the United States.

Roe and Doe have divided this nation like no other U.S. Supreme Court cases.  62 million children have been aborted in the United States since Roe was decided. Presidential races focus on whether the candidate is or is not in favor of Roe.  The primary focus of Senate hearings on filling vacancies on the U.S. Supreme Court have all focused on the candidate's view of Roe, with Republicans tending to favor cutting back the reach of that decision, and Democrats tending to demand these two decisions remain untouched, and that abortion on demand at any stage of development remain legal.

Currently, the makeup of the Court appears to favor the pro-life side of the argument. Justices Samuel Alito and Clarence Thomas have been joined by Donald Trump's pro-life appointments Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh, in what appears to be a majority aching for the opportunity to reverse Roe v. Wade.  Justice Roberts was appointed as a conservative believed to be pro-life but has proven to be a justice siding with the left-leaning justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor.  

Today the Mississippi case of Dobbs v. Jackson Women's Health Organization brings Roe and Doe squarely before the high court. The Mississippi law at issue bans abortions after 15 weeks of pregnancy.  Arguments were made today concerning the effectiveness of birth control methods other than abortion and whether viability should have any meaning.  In the decades since Roe and Doe, much more has been discovered about when a fetus dreams, feels pain and develops other senses, and those dates are far in advance of the time a fetus reaches viability.  With the current makeup of the Court, will Roe be tossed out completely, and be declared yet one more precedent whose time has passed?

My money says "no."  At least, not entirely.

However, the pro-life justices on the Court, I believe, will find a narrow way to allow the Mississippi law to stand.  There will be two (or more) opinions emanating from the Court when the pens of the justices are laid down.  There may be concurring opinions for and against Roe coming from this Court as well.  Don't be surprised if you see four opinions coming from this Court.  The only one that matters, however, will be the majority opinion, and that, I believe, will allow the Mississippi law to stand.

Justices are loathe to throw out long-standing opinions altogether.  With a pro-life majority, I believe the Court will snip at the edges of the "right to abortion" without throwing it out entirely.  They will allow this law to pass for some reason without utterly abandoning Roe.  Supreme Court justices almost never decide more than they absolutely have to decide when determining whether a law is or is not constitutional.   

How they will do it is anyone's guess, but I predict they will do it.  The means of their doing it cannot be predicted, because Roe and Doe stand out on an island by themselves, with no precedent or logic supporting the decisions.  They are the law of the land, but they themselves have no judicial precedent to stand upon.   If the high court, without a vote of the people, had the right to make this law in 1973, the high court in 2021 has the right to do whatever it chooses with that law.  The only question is how much of Roe will be left after this decision, and how the justices in the majority decided the case.