On December 1, 2021, the Supreme Court heard Dobbs v. Jackson Women’s Health Organization, the case that threatens to unravel Roe v. Wade and legal abortion. I was teaching during the hearing, so – struggling to understand what was happening – I read the transcript the next day. And then I read it again because I still couldn’t make sense of Mississippi Solicitor General Scott Stewart’s argument defending the law that would outlaw abortion after the fifteenth week of pregnancy.
As a firm supporter of access to legal abortion, I admit that perhaps my judgment was clouded. Still, part of me wanted to believe that there was a legal logic to Stewart’s arguments, even if I didn’t agree with it. So as I read, I summarized the positions of the state of Mississippi, and I share them here in the hope that you, too, will find it helpful to understand the grounds on which Roe v. Wade might be overturned.
In his opening argument, Stewart quickly dropped any pretense that the main goal of Dobbs is to move the line for legal abortion to an earlier point in pregnancy. He argued, “Roe versus Wade and Planned Parenthood versus Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise.” According to Stewart’s first argument:
1. Abortion takes a human life. (This argument isn’t new, of course.)
He then asserted his second argument:
2. Abortion has poisoned the court.
With Roe, according to Stewart, the Supreme Court got embroiled in political matters they should have never ruled on. By finally overturning Roe, their hands will be clean. Of course, he assumes that once Roe is overturned that will be the end of the Supreme Court’s involvement in abortion cases. I highly doubt this.
In response to Justice Clarence Thomas’s questions, Stewart formulated his third point:
3. The Constitution doesn’t say anything about abortion.
And this is true (obviously). The Constitution was written in the 1780s before there was even a distinction between abortion, what we now call miscarriage, and treatment to restore a missed period. In the 1780s, there was no abortion legislation in the United States. Still, Stewart discounts the Fourth Amendment, which has been interpreted as protecting the right to privacy in countless cases, including Roe. The majority decision in Roe also drew on the First, Ninth, and Fourteenth Amendments. In other words, there is a constitutional basis to the decision in Roe, even if the Constitution doesn’t explicitly mention abortion.
Ultimately, the point Stewart consistently returned to was that:
4. Abortion belongs to the people.
Returning decisions about abortion’s legality to the people means, for Stewart, that state legislatures should decide whether abortion should be legal. Stewart is well aware that if access to abortion were in the hands of states, then it’s expected that twenty-one states would ban or severely restrict access to abortion. However, in states like Mississippi that have a long history of gerrymandering districts to the benefit of white constituents, can it really be said that the legislature is reflective of its people? Furthermore, women continue to be underrepresented in state legislatures. In Mississippi, women make up 52% of the state population but just 16% of the legislature. If abortion really belonged to the people, then abortion would be decided between the person seeking the abortion and their doctor, not by state legislatures.
Later in the hearing, Justice Sonia Sotomayor wanted to know what exactly has changed for people seeking abortions since 1973 that legitimates challenging a case that has set a stare decisis (a precedent that can’t be overruled lightly). Stewart’s response:
5. Advancements in science and technology now suggest that fetuses can feel pain in the first trimester.
Fortunately, Sotomayor didn’t allow this pseudoscience to continue for long. As she told him, it’s a “minority of people, a – a gross minority of doctors who believe fetal pain exists before 24, 25 weeks, it’s a huge minority and one not well-founded in science at all.” So then, Stewart took another tactic:
6. Viability is arbitrary.
Viability is a key word in Dobbs. It’s mentioned 113 times, and many times in reference to Roe because Justice Harry Blackmun, who issued the case’s majority opinion, argued that abortion should be legal until the point of viability. His opinion defined “viability” as the end of the second trimester, which matched the science of the time. As he argued, this is when “the fetus then presumably has the capability of meaningful life outside the mother’s womb.” Roe therefore said that abortion must be legal in every state through the first trimester, legal in the second trimester for health reasons, and could be illegal in the third trimester as long as the pregnancy doesn’t threaten the woman’s life or health. Today, a fetus is considered viable if born as early as twenty-two weeks. Last summer, a baby born at twenty-one weeks and one day survived.
But such early births are still rare. So it’s true that, to an extent, viability is arbitrary – as neonatal medicine develops, the threshold moves. Still, Stewart argued that “viability is not tethered to anything in the Constitution, in history, or tradition. It’s a quintessentially legislative line.” This is not true: there is a scientific basis to viability, even if it keeps changing. Viability is not currently anywhere near fifteen weeks, which is when the Mississippi law would ban abortions.
Finally, Stewart argued that:
7. The undue burden standard is not objective.
The undue burden standard was created in 1992 when the Supreme Court case Planned Parenthood of Southeastern Pennsylvania v. Casey ruled that laws limiting access to abortion are constitutional – and don’t violate Roe – unless they create a substantial obstacle for women seeking abortions. Casey considered a Pennsylvania law that required a twenty-four-hour waiting period; a husband’s consent (if the abortion seeker was married) or parental consent (if a minor); and created further reporting requirements for abortion clinics. In a 5–4 decision, the Supreme Court upheld Roe’s protection of the right to an abortion before viability and after that only in cases when pregnancy put the woman’s life or health at risk. However, it also established the standard that allowed for restrictions to legal abortion as long as they didn’t place an “undue burden” on people seeking abortion (before viability). Therefore, waiting periods and parental consent were ok, but mandatory spousal notification was deemed an undue burden – or too substantial an obstacle – and outlawed. Since 1992, numerous states have created laws that make abortion more difficult to access by mandating waiting periods, requiring sonograms, and enforcing minor consent with the argument that they don’t create an undue burden.
When Stewart argued that the undue burden standard is not objective, he meant that determining what constitutes a substantial (or reasonable) obstacle for abortion access won’t be the same for every person. Therefore, it’s often a difficult – if not impossible – standard to uphold fairly and consistently.
On this point I agree with Stewart, but to very different ends. The undue burden standard is subjective, and I wish the Supreme Court had never invented it. It’s arguable that Casey, decided by a court with a majority of justices appointed by Republican presidents, set Roe up to fail. And so Stewart has a point when he calls the undue burden standard “the most unworkable standard in American law” because determining what creates an “undue burden” won’t be the same for every person. I’d love to see the undue burden standard erased so that waiting periods and other mandates are no longer deemed legal. Stewart would like to see it overruled so that states could pass laws limiting abortion regardless of whether they create insurmountable obstacles for those accessing abortion.
It’s possible I’ve overlooked a point Stewart made in support of upholding the fifteen-week abortion ban, an undisguised attempt to overturn Roe. (He admits so as well.) But after reading Stewart’s arguments, I have to agree with Sotomayor: if Roe is overturned, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Because ultimately, Dobbs relies on the same old antiabortion arguments to strip away reproductive autonomy. I don’t see Stewart making any new legal or scientific arguments for overturning Roe, and therefore, if the court decides that it no longer has precedence, it’s because three conservative justices with personal antiabortion views chose to. And as we all know, regardless of your view on abortion, that isn’t how any American court of law is supposed to work.