By Apurva Ambasth
The announcement of the Supreme Court on May 17, 2021 to take up the case of Dobbs v. Jackson Women’s Health Organization caused quite a stir. The case deals with the constitutionality of the Gestational Age Act, the 2018 Mississippi law that bans abortions after 15 weeks of pregnancy. The Court has stated that it would be dealing with the issue “whether all pre-viability prohibitions on elective abortions are unconstitutional?” The hearing of the case would commence in October and the Court is likely to deliver a judgment by spring 2022. This move is a direct, lethal threat to the landmark judgment of Roe v. Wade which guarantees the constitutional right to abortion throughout the United States.
The District Court of Mississippi and the Court of Appeals for the 5th Circuit both being bound by the precedent held that states cannot ban abortions before the fetus becomes viable, i.e. around 24 -28 weeks. However, Judge James Ho, a conservative Trump nominee beseeched the Supreme Court to overturn Roe v. Wade while he himself in the 5th Circuit had to follow precedent.
This blog provides an insight into how the politicization of the Supreme Court will adversely affect the right to abortion. It addresses the question of the constitutionality of the Mississippi law in the light of Roe v. Wade.
The Politicization of the SCOTUS
The polarization of the partisan politics between the Republicans and Democrats has led to the issue of abortion being used as a litmus test for the appointment of judges. With the loss of liberals’ most powerful dissenter, Ruth Bader Ginsburg and Trump’s third appointment to the Supreme Court, the Court now has a 6-3 conservative majority.
The dark legacy of the Trump era is manifested in its most alarming manner in the confirmation of Justice Amy Coney Barrett to the Court. Justice Barrett stated in her Senate confirmation hearing that she does not consider Roe to be a “super-precedent.” In accepting the nomination at the White House, Barrett explicitly stressed that Scalia’s “judicial philosophy is mine.” Barrett would mirror Justice Scalia, and thereby attempt to regress constitutional law and roll back abortion rights beyond contemplation. A dystopian world with practically no right to abortion would become the reality with 6 conservative Justices with tenets of Originalism guiding their decisions. Barrett has previously ruled in favor of restrictions on abortions in the cases of Box v. Planned Parenthood of Indiana and the Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana.
The Court has taken a peculiar and untoward move in taking up the Dobbs case reflecting its intentions of overturning Roe. In its usual course, the Court takes up only such cases that have created a circuit split, i.e. the cases that have divided the lower courts on a particular constitutional issue. However, in the Dobbs case, no circuit split was witnessed. With 4 judges consenting to grant a Certiorari, and a conservative majority the grim repercussions of a highly politicized, changing court could lead to a grave miscarriage of justice.
The Constitutionality of the Gestational Age Act, 2018
The Gestational Age Act, 2018 posits to ban all abortions after 15 weeks of pregnancy with exceptions only for medical emergencies or in cases of “severe fetal abnormality.” The law does not lay down any exceptions for instances of rape or incest. Furthermore, physicians who perform abortions will be penalized with a fine and the revocation of their license.
Looking back at the historic judgment of Roe v. Wade, the Court had recognized the fundamental constitutional right to privacy emanating from the Ninth and Fourteenth Amendment of the Constitution that encompassed the right of a woman to terminate a pregnancy. The court stated that a fetus was a “potential life” that did not have constitutional rights of its own. However, the right to abortion was not unlimited.
The court had laid out the framework of the trimester test playing out the dichotomy of a woman’s right to terminate her pregnancy and the state’s right to protect potential life. Although the interests of the state lies in ensuring the health of the mother it also lies in protecting potential life. The trimester test made these separate interests ‘compelling’ at different points in the gestation period. In the first trimester, the woman’s right to terminate her pregnancy is unlimited and state cannot interfere at all. In the second trimester, the state may impose regulations concerning the health of the pregnant woman. However, in the third trimester once the fetus becomes viable at about 24-28 weeks the State’s power to control abortions becomes unfettered.
Nineteen years later, the Court in the case of Planned Parenthood v. Casey upheld Roe and replaced the trimester framework with the viability test stating that “that viability marks the earliest point at which the state’s interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions.” Furthermore, the test of “undue burden” was laid down which stated that any law that places “substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability” is unconstitutional.
In June of 2020, the Court had struck down a Louisiana law in the case of June Medical Services v. Russo. The Louisiana Unsafe Abortion Protection Act required the physicians who performed abortions to have “active admitting privileges” and penalized those who performed operations without such admitting privileges. Chief Justice Roberts sided with the liberals in a 5-4 judgment relying on Casey and ruled that the law imposed an undue burden on women to get a pre-viability abortion.
Consequently, it can be made out that the Gestational Age Act is unconstitutional for it bans pre-viable abortions after 15 weeks and further imposes undue burden by penalizing physicians for performing operations after 15 weeks. The court must respect the principle of stare decisis following the 50 years old precedent of Roe and strike down the Gestational Age Act.
With Texas following in on May 19 with its “heartbeat bill” that bans abortions as early as six weeks, the constitutional rights of women are in a state of critical jeopardy. The fight for women to have the right of bodily autonomy, their liberty and privacy as guaranteed by the Constitution is at stake. The misgivings about the conservative Court upsetting the precedent of Roe and inviting acute political backlash by the pro-choice advocates is not unjustified. If the Court upheld the pre-viability bans in Dobbs, it will lead to the slow death of Roe opening the floodgates for more stringent laws banning abortions altogether.
About the author– Apurva Ambasth is an undergraduate penultimate year student of B.A.LL.B.(Hons.) at NUSRL, Ranchi, India. Her areas of interests include human rights, criminal, and international law.