Will the Supreme Court Overturn Roe in 2022?
A fight that began last year has continued into 2022 as the Supreme Court reviews a case that threatens to overturn the long-standing precedent for women’s healthcare rights in the United States.
And now, a new development on the Supreme Court puts the case back in the limelight ahead of an expected decision later this year.
How We Got Here
The case at hand, Dobbs v. Jackson Women’s Health Organization, stems from a Mississippi law that effectively prohibits nearly all abortion care after 15 weeks of pregnancy. The law includes exceptions for threats to the mother’s health or a “severe fetal abnormality.” Mississippi passed the abortion ban in 2018, and the case has ping-ponged through the lower courts before being taken up by the Supremes in 2021. This case would demolish reproductive rights set in the 1973 Supreme Court case Roe v. Wade.
A whopping 69% of Americans feel Roe should not be overturned, according to one January poll by CNN. Overturning the law would allow states to make their own laws and restrictions on women’s health care rights. But public opinion may not be enough to curtail the conservative-leaning high court from changing nearly 50 years of reproductive rights precedent with the bang of a gavel.
Jackson Women’s Health Organization, already the last abortion clinic in Mississippi, filed suit in federal court within hours of the law’s signing back in 2018. Since then, a federal judge struck down the law, saying it violated Supreme Court precedent and the 14th Amendment’s due process clause. The Fifth Circuit Court of Appeals also agreed with the lower court’s decision to strike down the 15-week abortion ban, and through the appeals process the law has eventually landed in the Supreme Court.
A Court Divided
While abortion rights have been chipped away over the past several decades by states implementing their own restrictions––such as mandatory waiting periods, admitting requirements and more––the 1973 landmark case has stood the test of time––until now.
The Supreme Court could very well allow the Mississippi law to stand, overturning those rights standardized in Roe, which constitutionally protects a woman’s liberty to choose to have an abortion without “excessive government restriction.” This is a relatively new possibility after former President Donald Trump brought in three new conservative justices during his time in office. The highest court in the U.S. now leans conservative by a 6-3 margin.
To understand––and speculate––how the court is likely to decide, it is helpful to look at comments and questions posed by the Justices during oral arguments last year.
Justice Sonia Sotomayor, who was appointed by former President Barack Obama, spoke about upholding precedence on abortion rights set decades ago. During the Dobbs hearing, Justice Sotomayor touched on the viability standard, which found that a fetus can survive outside the womb at around 24 weeks and where physicians generally draw the line for providing abortion care. That 24-week mark was decided during Planned Parenthood v. Casey in 1992––and hasn’t been challenged in whole since. Between Roe and Casey, the rulings ensure states cannot ban abortion before 24 weeks of pregnancy.
“What hasn’t been at issue in the last 30 years is the line that Casey drew of viability,” Sotomayor said last year. “There has been some difference of opinion with respect to undue burden, but the right of a woman to choose, the right to control her own body has been clearly set since Casey and never challenged.”
The sponsors of Mississippi’s law, known as the Gestational Age Act, put the ban in place because “there are new justices on the Supreme Court,” according to Sotomayor. She was referring to Trump appointees Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. In her arguments, Sotomayor also asked if the Supreme Court would “survive the stench” in the public perception by overturning the law.
Also during the hearings in 2021, Justices Kavanaugh and Barrett provided clear-cut insight into their abortion rights positions and possibly their eventual judgements, legal analysts have suggested. Kavanaugh seemingly attempted to punt the issue back to Congress, which has never codified abortion care as a right in law at the federal level.
“Why should this Court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” Justice Kavanaugh asked during the arguments.
To be clear, Mississippi is explicitly arguing that abortion rights should be overturned in the case.
“Roe and Casey are egregiously wrong,” Mississippi argued in a court brief. “The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.”
Of course, that lone Mississippi health clinic, Jackson Women’s Health Organization, has argued that reproductive rights are essential to gender equality.
What’s Next
It’s difficult to predict exactly how the Supreme Court will rule, but a decision is expected sometime this summer, by early July.
Unfortunately, the Supreme Court hasn’t taken action fast enough. Since the Mississippi case snaked its way through the courts, abortion has already essentially been outlawed in Texas. A bill approved in late 2021 bans abortion care services at about six weeks of pregnancy––before many women even know they are pregnant. The Supreme Court has failed to stop the law twice.
Fifteen more states (and counting) have introduced or passed copycat bills that effectively outlaw abortion in those states as well. Were Roe to be overturned later this year, those laws already on the books would become effective immediately.
This is extremely alarming to abortion rights supporters, and the Supreme Court’s latest actions are also extremely unpopular. A Gallup poll from the Fall of 2021 revealed approval for the nation’s highest court had dropped to its lowest rating among Americans since 2000, when Gallup began tracking the trend. Many women’s healthcare groups are bracing for Roe to end this year, with more legal battles likely to ensue.
Just this past week, there was another new development on the Supreme Court after Justice Steven Breyer announced his plans to retire. This gives President Joe Biden the opportunity to nominate a replacement who could uphold abortion care rights for potentially decades to come. Breyer, 83, was nominated to the Supreme Court by former President Bill Clinton in 1994.
Following the news of Breyer’s retirement, President Joe Biden pledged to nominate a Black woman to fill the role––something he promised to do while campaigning for president. The move was applauded by women’s rights groups.
Breyer’s decision to retire comes nearly a year and a half after famed women’s rights lawyer Justice Ruth Bader Ginsburg died while still in her seat. She was replaced by the conservative Trump nominee Amy Coney Barrett, who was narrowly approved for the position by the Senate just a month later.
Amy Baxter contributed to this report.