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Sean Kelly
On May 17, the Supreme Court voted to consider the Dobbs vs. Jackson Women’s Health Organization case regarding the Gestational Age Act (GAA) passed in Mississippi in 2018. This legislation required physicians to determine the age of the fetus before performing an abortion, and prohibited abortion after the fetus had reached 15 weeks in gestation with exceptions for cases where the mother’s life is in danger or a severe fetal abnormality. Previously called a “right to privacy” under Roe vs. Wade (1973), the Casey vs. Planned Parenthood (1992) decision framed abortion as an intrinsic liberty, without stating exactly how restrictions on abortion violated individual rights. The Casey decision also established the “undue burden” which declares that any law regulating abortion cannot impose “A substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability” according to the opinion written by Justices O’Conner, Kennedy, and Souter. In the Whole Women’s Health vs. Hellerstedt case, the Supreme Court clarified that a law prohibiting abortion must 1. Further a valid state interest, 2. Confer benefits that outweigh burdens, and 3. Be based on credible evidence. The decision to consider Dobbs combined with the decision to let the Texas Heartbeat Act play out in lower courts, signified a shift in the court, one that may have major consequences. In both the District and Circuit courts, the GAA was deemed unconstitutional under Casey, which established that it was unconstitutional to prohibit abortions before the fetus was “viable”, generally agreed upon at about 24 weeks. The Attorney General of Mississippi, Lynn Fitch, claims that unborn babies are protected under the 14th amendment, and there is “Nothing in constitutional text, structure, history, or tradition [that] supports a right to abortion”. In the petition to the Supreme Court, the State of Mississippi asked the Supreme Court to consider 3 questions. 1. Are all pre-viability prohibitions on abortion unconstitutional? 2. Should pre-viability prohibitions on abortion be evaluated under the “under burden test” under Casey, or the Hellerstedt benefits vs. burdens structure? 3. Do abortion providers have a third-party ability to challenge abortion regulations? Now, the Supreme Court only agreed to consider the first question, which is a positive sign for conservatives. Had the Supreme Court agreed to consider the second or third question, this would have given the Court a chance to clarify what states are and aren’t allowed to regulate when it comes to abortion, but only the first question poses a direct challenge to Roe vs. Wade. Similarly, out of three abortion-related cases petitioning to be heard by the Court, Dobbs gives the Court the chance to revisit Roe vs. Wade. Rutledge v. Little Rock Family Planning Services, a case concerning the legality to get an abortion because the unborn child has been diagnosed with Down Syndrome, and Planned Parenthood of Indiana and Kentucky v. Box, a case challenging if and when minors are allowed to receive abortions without the consent of guardians, would likely be wins for the Pro-Life movement; they would not plainly contradict Roe vs. Wade. With a 6-3 conservative majority, the judiciary has a chance to make an unprecedented change, though Chief Justice Roberts does prefer to decide cases narrowly which could limit the win for conservatives. Since Amy Coney Barrett’s nomination to the court, conservatives have held high hopes for the Supreme Court to revisit Roe vs. Wade. Though no justices have confirmed which way they will vote on Dobbs, it is likely that the Mississippi law will be upheld, which would do serious damage to the precedents set by Roe and Casey, if not prompt the Court to overturn them altogether. In the case that the Court does not overturn Roe or Casey outright, states would likely try to pass legislation in direct contradiction with Roe vs. Wade in an attempt to bring it to the Supreme Court. Should Roe vs. Wade be overturned, the issue would be sent back to the states for them to determine legislation. This case presents one of the first opportunities for perhaps President Trump’s greatest achievement to foreshadow just how far this conservative judiciary is willing to go. If the Chief Justice is the only conservative to vote against the GAA, the opinion would fall to the most senior member of the conservative bloc. Here’s to the Clarence Thomas Court. https://www.cnn.com/2021/07/21/opinions/clarence-thomas-supreme-court-power-toobin/index.h tml |