Aron Solomon: Will Dobbs Really End Roe v. Wade

In two weeks, on December 1st, the Supreme Court will hear oral arguments in Dobbs v. Jackson Women’s Health Organization, a case that came to the Court from the 5th Circuit. In the only case the Court will hear on that day, the 70 minutes set aside for oral argument could completely reshape abortion law in the United States

In Dobbs, a Mississippi case, the Court will examine the issue of whether all pre-viability prohibitions on elective abortions are unconstitutional. While Texas’s SB8 abortion law has been in the national and global spotlight for months now, Dobbs arguably presented a more compelling case to the Supreme Court.

One of the reasons the Court chose to hear Dobbs is that the Mississippi law in issue bans almost all abortions after 15 weeks. What is important about the 15 week period is that it is medically recognized as being well before a fetus is actually viable.

Nancianne Aydelotte, a New Jersey lawyer, reminds us that the stakes here are truly unparalleled.

“This case is a long-awaited one, as over the past two years we have seen anti-abortion legislation in many states throughout the nation. This case is the opportunity the Supreme Court has chosen to solidify or overturn the law of the land on this critically important issue,” said Ayedlotte.

Having listened to every oral argument since this incarnation of the Supreme Court has been together, the assertion we read in social and traditional media that the Court already has its mind made up in Dobbs and on the abortion issue writ large doesn’t resonate with me. This is a careful and thoughtful court and while it is, on balance, ideologically conservative – which concerns some observers – they have proven to be close listeners so far to oral argument. In the timeless words of Lenny Kravitz, it ain’t over ‘till it’s over, with “over” defined as those historically critical 70 minutes on December 1st.

The argument in Dobbs is that Mississippi’s Gestational Age Act, which bans abortion at 15 weeks, runs counter to what was guaranteed by the Supreme Court in 1992 in Planned Parenthood v. Casey. In Casey, the Court held that banning abortion before fetal viability at around 24 weeks was unconstitutional.

Counsel for the appellant here, Dobbs, the State Health Officer for the Mississippi Department of Health, will make the same fundamental argument that failed at the trial court and the notably conservative 5th Circuit. The short version of their argument is that the Mississippi law in issue “protects women’s health, the dignity of unborn children, and the integrity of the medical profession and society.” They will also argue that it isn’t good policy to use fetal viability as a measure on which to determine abortion legality, in part because the number of weeks at which a fetus is viable has changed over the years. Finally, they will make other Casey-related arguments, including around the “undue burden” standard.

Even for those who closely follow the Court and are convinced that its philosophical orientation and activist tendencies bode well for overturning Roe and Casey, they justifiably fear that the obstacle here could be the constitutionality of the Mississippi law itself. This specific law is zero-for-two in the courts, including what has to be a tough and surprising loss in the notably conservative 5th Circuit. Both sides should be worried here. Proponents of these “heartbeat” abortion laws should be worried that the facts of Dobbs make it a far from ideal case, while opponents of these laws should be equally worried about a Court primed to overturn Roe and Casey, even on the back of a deeply imperfect case.

In an interesting side note, while amicus curiae (“friend of the court”) have had some form of influence on the Court for many years, the sheer number of amicus briefs in the Roberts Court has been noteworthy – case in point, the hundreds of amicus briefs filed in Dobbs. As a point of comparison, there were only 31 amicus. briefs in Casey.

What all sides agree upon is that we overdue for the abortion issue to be refreshed and finally settled. This is going to be a massive job for the Court and one that will surely define their place in American history.

Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the editor of Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in CBS News, CNBC, USA Today, ESPN, TechCrunch, the Hill, BuzzFeed, Fortune, Venture Beat, the Independent, Fortune China, Yahoo!, ABA Journal, Law.com, the Boston Globe and many other leading publications.

 

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