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Should Roe v. Wade Stand?
The United States Supreme Court put abortion on center stage for its 2021–22 term last week when it agreed to review Dobbs v. Jackson Women’s Health Organization. In Dobbs, the Fifth Circuit upheld the Mississippi Gestational Age Act, which prohibits, except in cases of medical emergency or severe fetal abnormalities, abortions after fifteen weeks of gestational age. That statute is commonly understood to be in stark conflict with the 1973 Supreme Court decision in Roe v. Wade, which holds that a women’s right of privacy—itself nowhere explicitly stated in the Constitution—is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” before the fetus is viable, estimated at roughly twenty-four weeks of gestational age. The balancing test of Roe was explicitly affirmed and further developed in the 1992 Supreme Court decision Planned Parenthood of Se. Pa. v. Casey, which concluded that the state’s “profound interest in potential life” is not “strong” enough to block an abortion or to impose an “undue burden” on that right.
Despite constant attacks on its constitutional pedigree, Roe has been affirmed by “an unbroken line” of cases, as the Fifth Circuit noted in Dobbs. Even so, the deep unease about Roe was clearly articulated in Judge James Ho’s concurring opinion, which acknowledged the precedential force of Roe only to sharply attack its methodological underpinnings for giving insufficient weight to the state’s interest. Though the Mississippi law posed three challenges to the current Roe/Casey synthesis, the court granted the state’s petition for certiorari solely on one question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” The court declined to review on the temporizing question of whether, under the Roe/Casey framework, the Mississippi statute posed an “undue burden” on the abortion right.
Defenders of Roe view the case as an all-or-nothing choice. Thus, Emily Cain (of EMILY’s List) lamented that this “consequential” order now reveals the Republican goal “to overturn Roe and take away the right [for women] to make their own health care decisions.” Republicans, for their part, do not deny that charge, but insist that their tireless efforts to elect pro-life legislators has been vindicated by the grant of certiorari.
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