Supreme Court to review major abortion case

The U.S. Supreme Court has granted the state of Mississippi’s certiorari petition in the case of Dobbs v. Jackson Women’s Health Organization. The petition concerns Mississippi’s Gestational Age Act, enacted in 2018, which allows abortions after 15 weeks of gestational age only in medical emergencies or in instances of severe fetal abnormality.

The question the Court agreed to review is: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” The Court did not agree to review two other questions raised in Mississippi’s petition.

The first is whether the validity of a pre-viability law “should be analyzed under [Planned Parenthood v.] Casey’s ‘undue burden’ standard or [Whole Woman’s Health v.] Hellerstedt’s balancing of benefits and burdens.” Ed Whelan notes that after Mississippi filed its petition, Chief Justice Roberts, in a decisive concurring opinion, rejected the premise of this question — i.e., that Hellerstedt should be read to have deviated from Casey. (That case is June Medical Services v. Russo).

The other question the Court declined to hear is “whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.”

As to the question it agreed to hear, Ed points out that the Court has already ruled, in Gonzales v. Carhart, that the federal partial-birth abortion law could operate pre-viability. He adds, however, that the Court’s ruling in that case expressly “assume[d]” that a state may not “prohibit” abortion “[b]efore viability.” Thus, the key in Gonzales v. Carhart was that the law in question did not prohibit the “usual abortion method” for second-trimester abortions.

The law now before the Court does. This means the Court will hear argument as to whether at least some pre-viability prohibitions are constitutionally permitted even outside the partial birth context.

I won’t hazard a guess as to how the Court will rule in the Mississippi case. My general sense of how the current Court will handle the abortion issue is that it won’t overturn Roe v. Wade, but might well uphold some statutory limits on abortions that it would have rejected, and maybe some it has rejected, in the past.

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