On Wednesday, Dec. 1, the Supreme Court began hearing a case, Dobbs v. Jackson Women’s Health Organization, centered around abortion rights. Two major cases have set the stage for this legal challenge: Roe v. Wade and Planned Parenthood v. Casey. The case before the court has the potential to undermine – or even overturn – these landmark decisions.
In 1973, the Supreme Court set a long-standing precedent in Roe v. Wade: the constitutional right to abortion. In 1970, a woman, called Jane Roe in court for privacy purposes, filed a lawsuit against Henry Wade, the district attorney in Dallas County, Texas. She challenged a Texas law that banned abortion in all cases except those in which a doctor ordered an abortion to save a woman’s life. The Supreme Court took on the case and struck down the Texas law.
The majority opinion in Roe stated that the Due Process Clause within the 14th Amendment protects right to privacy, which encompasses women’s right to choose to have an abortion. The opinion acknowledged that the state must strike a balance between two legitimate interests: protecting women’s health and the “potentiality of human life.” This decision led to a ban on state laws regulating abortion before “viability” of the fetus, or before the fetus could live outside of the mother, which experts estimate happens around 24 weeks.
In 1992, the Supreme Court heard another case, Planned Parenthood of Southeastern Pennsylvania v. Casey, and set an important restriction on the ability of states to regulate abortion. A few years prior, Pennsylvania legislators passed a series of provisions amending the existing abortion laws, including new requirements regarding informed consent, a 24-hour waiting period, parental consent for minors and notification of husbands for married women.
When the case got to the Supreme Court, justices implemented a new standard for testing the legality of state abortion laws: the undue burden test. According to this test, laws cannot impose a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Though the court decided that the husband notification requirement was the only provision to fail the undue burden test, an important precedent was set.
Jackson Women’s Health Organization, the defendant in the case that the Supreme Court heard this week, is an abortion clinic challenging a Mississippi law banning abortion after 15 weeks. Mississippi legislators passed the law in 2018, but a federal appellate court quickly blocked its enforcement. The state says that the fetus has made important physiological developments by 15 weeks and, at that point, abortions can be dangerous for women. Jackson Women’s Health Organization argues that the fetus is not viable at 15 weeks, making regulation of abortions unconstitutional based on Roe v. Wade.
A federal appellate court decided against the state, affirming a lower court ruling that abortion is a right until a fetus is viable. Mississippi appealed to the Supreme Court to overturn Roe v. Wade and Planned Parenthood v. Casey with Thomas E. Dobbs, Mississippi’s state health officer, as the named petitioner on behalf of the state.
One of the state’s main arguments – and the one I hope to call attention to – suggests that laws protecting abortion rights, many of which rely on the precedents of Roe and Planned Parenthood, are less necessary now because of the expansion of economic opportunities for women. Essentially, they’re making a “you can’t have it all” argument directed at women, saying women can be financially successful on top of supporting a family, so they won’t need an abortion.
This argument is problematic and dangerous for a few reasons, one of which being that it sidesteps the real issues underlying abortion rights, like the right to make decisions regarding one’s health. This argument also doesn’t reflect the economic realities of many women, particularly women of color, nonbinary or trans women and low-income women. Federal protections for women with children, from paid leave, to childcare assistance, to pregnancy discrimination protections, are weak at best and nonexistent at worst.
The precedent set by the passive acceptance of the “you can’t have it all” argument would have a trickle-down effect that should concern all of us, regardless of identity or ability to become pregnant. Once this argument has been accepted by the court, it can be used to justify the absence of other rights protections based on the argument that they are no longer needed.
If Roe and Planned Parenthood decisions are reversed, eliminating the viability line standard and undue burden test, states can immediately begin making all abortions illegal. Moreover, many states have laws written banning abortions that could go into effect upon the reversal of these decisions. The move to a blanket ban on abortions could become a tangible reality incredibly fast. Though Massachusetts laws would likely see little change, we would be impacted by changing laws in nearby states, as we would become a haven for residents of states where currently unenforceable pre-Roe laws would go into effect, such as Michigan and Wisconsin.
The current Supreme Court has a 6-3 conservative majority, which makes optimism about the outcome of the case, which will likely be decided next June, difficult. In the meantime, we must understand the weight of the arguments that were made on Wednesday and the danger they pose to the future of women’s rights.
Tegan Oliver can be reached at [email protected].
