The current Supreme Court case Dobbs v. Jackson could potentially overturn the 1973 ruling on Roe v. Wade, a landmark case that gave American women the right to an abortion. Oral arguments began on Dec. 1. The two parties in the case are Thomas E. Dobbs, a state health officer of the Mississippi Department of Health, and the Jackson Women’s Health Organization. Representing Dobbs, or the petitioners, is Scott Grant Stewart of the Mississippi Attorney General’s Office; Hillary Anne Schneller and Julie Rikelman from the New York Center for Reproductive Rights represent Jackson, the respondents. Elizabeth B. Prelogar, Solicitor General from the Department of Justice, will act as the amicus curiae — a “friend of the court” — and will attempt to persuade the court to support the respondents in this case as per the United States’s interest.
The case revolves around a petition filed against the Jackson Women’s Health Organization. A 2018 Mississippi law entitled the Gestational Age Act (GAA) bans abortion after the 15-week gestation period, with only a few limited exceptions. The GAA conflicts with the Supreme Court’s prior rulings on state regulations for abortion, with Planned Parenthood v. Casey (1992) primarily contrasting the decisions until now, all lower courts have ruled under the idea that it is unconstitutional for a state to ban abortions before the fetus becomes “viable.” Fetal viability is the point at which a fetus can live outside of the womb with medical intervention, requiring case-by-case determinations. In Casey, the Supreme Court decided that viability tended to be around 23 to 24 weeks; this date may shift further forward as medical technology has improved significantly since that ruling.
Mississippi’s 15-week ban institutes two requirements: first, a physician must determine the probable gestation age of the fetus before performing an abortion; second, the law prohibits physicans from performing an abortion if the age of the fetus exceeds 15 weeks.
As the only licensed abortion facility in Mississippi, the Jackson Women’s Health Organization (JWHO) filed a lawsuit against the state, alleging the GAA’s unconsituationality due to its violation of the undue burden standard. This standard states that courts must consider if legislation will pose a substantial obstacle in the path of women trying to get an abortion, as that would make the regulation unconsitutional. The JWHO also requested an injunction — a judicial order that stops an entity from beginning an act invading the legal right of another — against Mississippi from enforcing the GAA.
For this case, the Supreme Court agreed to consider three issues. First, whether all pre-viability prohibitions on abortions are unconsitutional. Second, if the court must determine pre-viability under the Casey undue burden standard or the Hellerstedt burdens versus benefits framework, which states that when a court determines abortion regulation they should look to a regulation’s burdens and benefits to analyze the law’s purpose and effects, before it is put into place. Lastly, the Court must decide whether abortion providers have third-party standing to challenge laws in order to protect women’s heath, like the Jackson Jackson Women’s Health Organization did.
(Sources: Supreme Court, UCLA Law Review, The New Yorker, Bloomberg)