Roe redux: Is ‘viability’ still viable as a constitutional doctrine?

The Supreme Court is on the verge of a battle in what may be the most momentous abortion case in decades, Dobbs vs. Jackson Women’s Health Organization. For years, many analysts have pegged cases as possible death sentences for Roe v. Wade overrated. Despite the annual columns questioning such apocalyptic predictions, which often appeared political rather than legal, the Dobbs grant led me to write my first “That Could It Be” column.

Dobbs has everything you need in a Roe homicide case. That doesn’t mean the court will, but it could significantly reduce Roe’s influence over states.

The more interesting question is not whether Roe will go, but whether “viability” is still a viable basis for limiting states’ abortion laws.

There is no constitutional issue that has left more lasting divisions in society and the judiciary. This case resulted in the third highest number of pleadings in the history of the court (after the leading case for same-sex marriage in Obergefell against Hodges and the ObamaCare ruling in the NFIB against Sebelius); the majority support Mississippi in banning abortions after the 15th week of pregnancy.

Forty-eight years ago, the Roe court ruled that “the right to privacy includes the decision to abortion, but that this right is not unconditional and must be weighed against important government interests in regulation”. The court instituted a trimester system of escalating state authority, with little authority in the first trimester but considerable authority – including possible prohibitions – in the third trimester when a baby is viable outside the uterus.

Then, in 1992, a deeply divided court upheld Roe’s “substantial stake”, but a majority abandoned the trimester approach in favor of the current “viability” standard. Under this approach, a state could legislate to protect the “potency of human life” once a fetus has become viable, “except when necessary … to maintain the life or health of the mother”. This line was considered to be about 23 or 24 weeks. (The Washington Post confirmed that the United States is one of only seven of the 198 countries in the world that allow abortions after the 20th week of pregnancy.)

Since then, abortion has remained a matter of deep divisions. Indeed, the righteousness who died Ruth Bader GinsburgRuth Bader GinsburgYankee Scribbled the Media: How “Let’s Go Brandon” Became a rally against bias in the news Katie Couric: CNN Shouldn’t Have Yuken Chris Cuomo During The Pandemic With Brother Andrew Katie Couric rejects early coverage of that Book off as ‘strange, wanton misinterpretation’ MORE was a critic of Roe for believing that it would go too far to replace state laws. She later blamed the case for reversing the trend towards more pro-choice states.

In order to uphold Roe, the court will likely need more than the usual arguments of the state decision, the doctrine that the court should generally stand by its precedents. Pro-Choice members and supporters have insisted that Roe is a “super precedent” that cannot be put aside like other cases. (Notably, senators who denounced even the idea of ​​overthrowing Roe as legal activism have called for cases like Citizen’s United and Heller to be overturned.)

However, aside from the very existence of such a particular category of “super precedent”, the court has never found a solid foundation for abortion. For about 50 years she issued a litany of plurality, or 5-4 decisions. In 2000, for example, a 5-4 majority in the Stenberg v. Carhart passed a partial birth abortion law, but two years later voted 5 to 4 in favor of a partial birth abortion ban.

Today the country is deeply divided. Polls show strong support for Roe in principle, but also for a caveat. For example, a new poll from Marquette University Law School showed 2: 1 support for Roe, but a larger number of respondents (37 percent) supported the 15 week limit in Dobbs than they did against (32 percent).

During this tenure, the court faced two viability challenges. After Dobbs was accepted with his 15-month deadline, attorneys attempted to outlaw a Texas law that outlawed abortion after just six weeks. The court ruled 5-4 to allow enforcement of Texas law. The Biden government returned a few weeks later to petition the same judges for an injunction and a ruling on the statute. Not surprisingly, the judges did not impose the law, but they were able to bring it up, either by bringing it up for decision on the matter or by disputing it in a decision under Dobbs. Meanwhile, the United States Court of Appeals will be serving an expedited appeal against Texas law in the Whole Woman’s Health v Jackson case next week.

Abortion was treated as a criminal offense under old law, and that status remained when our constitution was drafted. The limit of many of these early laws was not viability, but “acceleration”. In Roe’s letter, Judge Harry Blackmun noted that “prior to ‘quickening’ – the first noticeable movement of the fetus in utero, which usually occurred between the 16th and 18th weeks of pregnancy – was not a criminal offense.” laid the line along this earlier acceleration phase.

Pro-choice advocates hope Chief Justice John Roberts and Justice Brett KavanaughBrett Michael KavanaughGraham emerges as an ally for Biden’s judicial selection Race isn’t central to the Rittenhouse case – but the media shouts it anyway GOP Senators are appalled by “ridiculous” house disputes MORE can be lured back to the center to vote with the three liberal judges. Arguments about a “super-precedent” could appeal to Roberts, who is known as an institutionalist and an incrementalist who feels uncomfortable when the court orders transformative changes in society. Reversing Roe is the ultimate sticker shock moment for Roberts. However, it was Roberts who wrote in Citizens United v Federal Election Commission (2010): “We cannot get into a narrow ground just because it is narrow; it also has to be right. “

Some judges are already on record questioning Roe’s constitutionality. Some of these judges disagree with Roe’s extensive “penumbra” of privacy. While often on Roberts’s side, Kavanaugh also said in Ramos v Louisiana (2020) (a non-abortion case) that the court cannot maintain a precedent that is “grievously or outrageously wrong”. In the same case, Judge Neil Gorsuch wrote: “The doctrine of state decision, of course, does not mean that the court should never override erroneous precedents.”

So how sustainable is “viability” when a majority of judges do not see a constitutional basis for the right to abortion?

First, these judges must decide whether Roe was flawed to begin with or whether, as some have argued, such views of unconstitutionality need to be put aside for historical reasons. Then, if they do not completely overthrow Roe, they must again face the insane task of drawing a line between a woman’s relative authority and the state – a line that wavers between animation and viability.

Of course, the court could reconfirm Roe, which – by a majority of six Conservatives – would likely mean that Roe will remain good law for the foreseeable future. However, it could also abandon viability or otherwise empower states to restrict pre-viability abortions.

Judge Ginsburg once remarked that “it’s hard not to have a great year at the Supreme Court”. That’s true – but Dobbs would be a historic year if the court found what it has long evaded when it comes to reproductive rights: clarity.

Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

https://thehill.com/opinion/judiciary/583218-roe-redux-is-viability-still-viable-as-a-constitutional-doctrine