Jim Hartman
Courtesy Photo
The Supreme Court heard oral arguments on Dec. 1 in Dobbs vs. Jackson Women’s Health Organization, its most important abortion case in decades.
For 48 years, judicial conservatives have complained that abortion is nowhere mentioned in the Constitution, and its regulation should be a police power reserved for the states.
The Dobbs case concerns a Mississippi law that prohibits abortion after the 15th week of pregnancy.
In 1973, the court held in Roe vs. Wade “the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”
The court created a trimester system of state authority with little authority in the first trimester, but considerable authority – including possible bans – in the third trimester when a baby is viable outside the womb.
In 1992, a divided court upheld in Planned Parenthood vs. Casey the “essential holding” of Roe, but dispensed with the trimester approach in favor of the current “viability” standard.
Under this approach, a state could protect the “potentiality of human life” through legislation once a fetus reached “viability,” viewed as around 24 weeks.
Because the Mississippi law prohibits abortion after 15 weeks of pregnancy, several weeks before “viability,” it conflicts with the Roe and Casey cases. The Mississippi case directly confronts the Supreme Court with an argument that Roe vs. Wade should be overturned.
There are now six justices appointed by Republican presidents who are known or strongly believed to think both Roe and Casey were wrongly decided.
The justices could declare the Mississippi law unconstitutional based on stare decisis, by following its own precedents. That appears unlikely. During oral argument only the three liberal Justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan – defended Roe.
Alternatively, the court in the Dobbs case could settle for an incremental ruling that upholds the Mississippi ban on abortion after 15 weeks, or it could overturn Roe and return the regulation of abortion to the legislatures in the 50 states.
Chief Justice John Roberts suggested during oral argument that the Mississippi law could be upheld without overturning Casey.
Casey holds that states cannot impose regulation that is an “undue burden” on a woman’s ability to obtain an abortion. The court could rule that Mississippi’s ban is not such a burden, and thus not have to reconsider Casey or Roe.
This incremental approach might attract Justices Amy Coney Barrett and Brett Kavanaugh who have joined Roberts’ opinions in other cases.
Ultimately, such a ruling won’t resolve abortion law. Sooner or later the justices will have to overturn Roe and Casey or affirm they stand on solid legal ground.
If the court goes as far as overturning Roe, abortion will not be barred across America. Some states may ban it, but other states, like California and New York, will allow abortion on demand right up to the last day of pregnancy.
In 1990, Nevada voters approved a constitutional amendment making abortion legal within 24 weeks. It passed with 63.5 percent of the vote and the Nevada Legislature may not alter the law, unless it’s first repealed by state voters. Abortion is a state constitutional right in Nevada.
Polls consistently show Nevada voters favor abortion rights by significant numbers.
Politically, Republicans may regret what they wished for – in the event Roe is overturned.
Two-thirds of voters (65 percent) in a September Fox News poll want Roe kept in place, a record high. Over half of Republicans (53 percent) join large majorities of Democrats (77 percent) and Independents (64 percent) saying Roe should remain the law. Only 28 percent of voters favor overturning Roe.
Vulnerable Democrats from Nevada to New Hampshire are promising to make abortion a centerpiece of their 2022 campaigns.
A decision in Dobbs is expected next June.
Jim Hartman is an attorney in Genoa. E-mail lawdocman1@aol.com.
