Abortion Rights Are On the Supreme Court Docket

During his campaign for President, Donald Trump famously vowed to appoint Supreme Court justices to overturn Roe v. Wade. However, at the end of his term, it remained the law of the land. This could soon change. While the Supreme Court upheld abortion rights in a 5-4 decision in Louisiana’s June Medical Services v. Russo, according to the May 2021 Supreme Court order list, they have decided to hear Mississippi’s case Dobbs v. Jackson Women’s Health, which will determine the constitutionality of the state’s 15-week abortion ban limit. Given the Supreme Court’s refusal to block S.B. 8, Texas’s ban on abortion at six weeks of pregnancy, the decision could potentially overrule the rights instilled in Roe, posing a significant threat to the landmark decision. If the Mississippi law is upheld, not only would it trigger states to pass outright bans on abortion, a move that goes against what the American public wants, but will also put socioeconomically disadvantaged individuals at higher health risks by limiting their access to legal and safe abortions.

With the appointments of Associate Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, Trump solidified a Supreme Court that has the potential to overturn Roe. Last year, Justices Gorsuch and Kavanaugh both dissented the court’s opinion in June v. Russo, which banned Louisiana from enforcing hospital-admission requirements on abortion clinic doctors. The Court was split, 5-4, with Chief Justice Roberts concurring with the majority, solely because he believed that the Court should uphold a ruling that it had handed down a few years earlier, referencing the court’s 2016 decision that found Texas’ restrictions placed an undue burden on women’s constitutional access to abortions. However, with the recent appointment of Justice Barrett in 2020, who has a record that would support restricting abortion access, the court no longer needs Chief Justice Roberts to reverse Roe v. Wade, making the threat to its survival very real.

The inclusion of Dobbs v. Jackson Women’s Health on the Supreme Court’s docket presents a new and unique opportunity for social conservatives to overturn Roe v. Wade. The case is brought forward by Mississippi’s singular licensed abortion provider, Jackson Women’s Health Clinic, who is challenging the constitutionality of the state’s 2018 law that prohibits all abortions after 15 weeks from conception, except for in cases of health emergencies or fetal abnormalities. The time limit is significantly more restrictive than the current standard set in Roe v. Wade regarding fetal viability, or the point at which a fetus can survive out of the uterus, which is 24 weeks.

By placing this case on their docket, the court is indicating its willingness to overturn Roe v. Wade for three key reasons. First, Dobbs is a unique case in that there is no split in the opinions of the lower courts, which is typically a prerequisite for the court to even look at a case. This lack of disagreement within the lower courts means there is little reason for the Supreme Court to hear this case if not to set a new precedent or abolish its standard. Second, the state of Mississippi provided ways for the court to rule without destroying Roe, but the court specifically chose to consider the central question “whether all pre-viability prohibitions on elective abortions are unconstitutional,” which indicates that the conservative judges are attacking the very crux of the argument made in Roe. Finally, the inclusion of Justice Barrett means the court no longer depends on Justice Roberts to vote in favor of limiting access to abortions.

Despite support from conservative political elites, religious groups and Southern & Midwestern state governments, overturning Roe v. Wade is not popular at the national level. In fact, polling shows that a majority of Americans (66%) support Roe. Further, polling data found that 62% of registered voters said that the court should uphold Roe. While the court is not a democratic institution by nature, it is at the very least concerning that the court is willing to subvert the general will of the populace in subjective questions of constitutionality.

If abortion protections are reversed, the consequences for women will be dire. According to a study conducted by Dr. Caitlin Myers of Middlebury College, the overturning of Roe v. Wade would limit abortion access through two main channels. First, abortion would become illegal in the eight states with preemptive “trigger bans,” which are legislative intents to ban all or most abortions as soon as Roe is overturned. Second, abortion would likely become illegal in an additional 13 states that are classified as high risk for outlawing most forms of abortions. Since the release of Myers’ study in 2019, two more states have implemented preemptive “trigger bans” seemingly in response to the inclusion of more pro-life justices on the Supreme Court. Myers ultimately finds that “aggregating across all affected regions, the residents of affected counties are expected to experience a 249-mile increase in travel distance and for regions at high risk of banning abortions, the abortion rate is predicted to fall by 32.8% … in the year following a Roe reversal” (2019). This research underscores how inaccessible abortion would become to individuals who do not have the resources, finances, or support to travel long distances to reach an accessible abortion facility out of state.

A study published in the Qualitative Health Research journal by Dr. Bayla Ostrach from Boston University and Dr. Melissa Cheyney from Oregon State University describes just how such abortion bans would disproportionately impact those affected by structural inequities such as race and socioeconomic status. Currently, such individuals already encounter “more obstacles to care, [have] a harder time obtaining services, and [are] more vulnerable to the barrier of inadequate social support” (Ostrach and Cheyney, 2014). These researchers conclude that if abortion becomes less accessible, it will only exacerbate these existing inequities and barriers.

At the beginning of President Trump’s campaign, it seemed unlikely for the court to take direct aim at Roe v. Wade due to the justices’ ideological makeup. But with the court’s decision to hear cases without disagreement in the lower courts alongside the appointment of three new justices, it is clear that socially conservative justices are willing and able to use their recent majority to make long-standing disruptions to court precedent.

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Myers, Caitlin, Rachel Jones, and Ushma Upadhyay. “Predicted changes in abortion access and incidence in a post-Roe world.” Contraception 100, no. 5 (2019): 367-373. https://doi.org/10.1016/j.contraception.2019.07.139

Ostrach, Bayla, and Melissa Cheyney. “Navigating Social and Institutional Obstacles: Low-Income Women Seeking Abortion.” Qualitative Health Research 24, no. 7 (July 2014): 1006–17. https://doi.org/10.1177/1049732314540218.