Marshall H. Tanick
BridgeTower Media Newswires
“What has once been settled by precedent will not be unsettled overnight, for certainty and uniformity are gains not lightly sacrificed.”
— Supreme Court Justice Benjamin Candow, The Paradox of Legal Science (1928)
“[A] demonstrably incorrect judicial decision … perpetuates a usurpation of the legislative power.”
— Justice Clarence Thomas, concurring in Easter Enterprises v. Apfel (1998)
Pro-choice advocates and pro-life proponents are waiting with bated breath as the high-profile Mississippi abortion case challenging the rights established in 1973 in Roe v. Wade is about to be heard by the U.S. Supreme Court.
The case of Dobbs v. Jackson Women’s Health Center, No. 19-1293, to be argued before the justices on Wednesday, Dec. 1, concerns a Mississippi law that generally restricts abortion to 15 weeks, with some limited exceptions in rare instances, like the health of the mother or “severe” fetal abnormality.
The re-emergent Dobbs litigation has been overshadowed recently by the battle over the six-week vigilante Texas abortion law, which was heard by the high court at the beginning of this month and is currently under submission solely on procedural grounds whether the Department of Justice has standing to sue in U.S. v. Texas, No. 21A85 (21-588).
Abortion-rights supporters fear a ruling on the statute might mark a rollback of the constitutionally based privacy and due process reproductive rights recognized by the Roe case, including the unlimited permissibility of abortions during the first trimester, restricted access to abortion in the next trimester prior to viability of a fetus, and only for exceptions for the life or health of the mother upon fetal viability in the third and final pregnancy phase.
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Shaky survival
But their adversaries are gleeful, seeing the same potential consequences and hoping they occur, a development they have been waiting for decades to achieve.
Although a number of cases imposing various abortion restrictions have been addressed by the high court since Roe, the doctrine has shakily survived for the most part.
The Mississippi case is the latest in a long line of high court post-Roe decisions that have largely upheld the “viability” doctrine authored by Justice Harry Blackmun, while imposing some limitations on the exercise of the right, including a Minnesota case, Hodgson v. State, 49 U.S. 417 (1993), which more than three decades ago upheld the Minnesota statute requiring parental notification, coupled with alternative bypass routes for minors to seek judicial approval without parental approval.
The Mississippi 15-week law was overturned by two lower federal courts on grounds that it conflicts with the three-tiered “viability” doctrine constructed by Blackmun’s 7-2 majority opinion in the Roe case.
While the Mississippi statute does not totally decimate Roe but reduces the permissible abortion period to 15 weeks, there is more to it than that. The court, in taking certiorari, posed the issue as whether the “viability” premise of Roe should be eradicated altogether Further, the Mississippi attorney general, in briefing the case before the high court, asserts that Roe should be abrogated entirely, barring any constitutional restraints on abortion restrictions, an issue that undoubtedly will probably crop up at oral argument.
Dobbs will pose the most direct head-on challenge to the core of the Roe case. But the Mississippi case, following the Texas tussle, is not the only or first abortion case before the jurists in the nation’s capital this fall.
Last month, during the first week of its current 2021-22 term, the court heard an attempt by the attorney general of Kentucky, a Republican, to try to revive an abortion restriction law invalidated by a court in that state a couple of years ago, a ruling that the governor there, a Democrat, declined to appeal. In Cameron v. EMW Women’s Health Center, No. 20-601 (October 12, 2021), the justices are now pondering whether the case can be resuscitated long after the deadline for appeal has passed. The decision could, if it goes the way of the attorney general challenger, open up a potential floodgate of dormant, seemingly settled reproductive rights litigation.
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Reversal route
The claims at issue in these abortion cases from Texas, Kentucky, and Mississippi confront the doctrine of precedent, auguring in favor of upholding past judicial decisions. That tenet known as stare decisis is grounded in maximizing certainty and stability but is hardly talismanic.
In fact, the high court has departed, according to some accounts, from its own precedents, in whole or in part, on more than 300 occasions, an average of more than once per year over the course of the tribunal’s illustrious but occasionally ignominious 232-year existence.
It has done so in a wide variety of contexts, with reversals ranging from high profile First Amendment litigation to criminal law to employment and labor disputes to more mundane legal procedures and protocols, among other matters.
Lower federal courts have overturned statutes making these Mississippi-type inroads into Roe at least a dozen times, and the high court has steadfastly refused to review them as recently as five years ago—until now.
But the composition of the tribunal has markedly changed with the death a year ago of Ruth Bader Ginsburg and retirement in 2018 of Anthony Kennedy, two abortion rights supporters, coupled with three appointees by former President Trump, resulting in a current 6-3 conservative majority that does not bode well for Roe adherents.
The route to reversal of Roe has been laid out often by the high court in rulings overturning precedent or signaling its inclination to do so. The most notable recent one occurred in a ruling two years ago in Janus v. AFSCME, 138 S.Ct. 2448 (2018). A labor union case in which the high court reversed nearly 40 years of precedent in allowing labor union members to refuse to pay union dues on grounds of the right of freedom of expression under the First Amendment, and the path was trod again a couple of years later in Ramos v. Louisiana, 140 S.Ct. 1390 (2020).
In the majority ruling in Janus, reiterated in Ramos, the court articulated six factors to be considered in overturning precedent, a standard that has been referenced more obliquely or alluded to in other cases as well.
The prospect for overturning Roe may turn on a number of these considerations when the justices take up the Mississippi case at the beginning of the month. The half-dozen factors delineated for reversal may threaten Roe’s vitality.
Here’s how it could happen:
The first prong of the route to reversal is whether the decision was one of constitutional law, where the court in the Janus case deemed adherence precedent is “weakest.” Roe meets this standard because the decision written by Justice Blackman was strictly based on constitutional reasoning under the implicit right of privacy under the Ninth Amendment to the U.S. Constitution.
Whether the Roe case was “wrongly decided” is another explicit factor in determining whether to follow or depart from it. Although none of the justices currently on the high court were there at the time of Roe, which was a 7-2 decision, a number of them have passed upon post-Roe issues, and a few have expressed their view that Roe was not only an aberration, but an abomination. The Mississippi Attorney General’s Office, which is carrying the banner for the law before the high court, has signaled that this prong will be a major target in the state’s argument, calling the Roe decision in its legal briefing “egregiously wrong.” This theme also has emerged in some other lower federal courts addressing Roe-related issues over the years, suggesting that the “wrongly decided” factor might be a fertile field for plowing Roe under the surface.
The “quality” of the reasoning of the Roe case is another consideration that might cut against its survival. Even some who support the outcome of that case, a right of “choice” for women under an implicit but not explicit constitutional right of privacy under the Ninth Amendment, have questioned whether the decision was properly premised on that provision. The late Justice Ginsburg, a strong Roe advocate, stated that the ruling should have been based upon denial of equal protection, a view shared by constitutional scholar Harvard Law Professor, Lawrence Tribe, a well-known constitutional scholar and highly successful Supreme Court advocate.
The “workability” of the Roe doctrine is another factor that comes into play. The trimester-viability concept embedded in the Roe decision, regulating abortions relative to the duration of the pregnancy, has raised questions of its feasibility.
The status of “different” legal rulings and new developments over the years, another factor cited in the Janus case, also could militate against maintenance of the Roe rationale. A number of differing legal rulings have been issued by the court throughout the years, including the Supreme Court itself that impose restrictions on reproductive rights including limited pre-abortion waiting periods and parental notification and consent requirements, among other limitations. Those inroads on the margins of the Roe doctrine provide a route for its reversal.
The final factor, whether there has been “reliance” on the Roe doctrine, is a tricky one. That consideration is most applicable in business and commercial matters, not matters of personal choice. But defenders of Roe may be hard pressed to convince a tribunal that women have relied upon Roe in becoming pregnant, and supporters of the Mississippi measure may pounce on that factor in arguing that women do not engage in reliance on Roe in carrying out their daily lives.
These half-dozen considerations and, perhaps others, may be central to the high court’s consideration in deciding whether to retain or restrict the Roe ruling. In the meantime, both advocates for Roe and its opponents, are gearing for what may be an abortion Armageddon at the high court.
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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
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