I need to speak to the Supreme Court’s manager because there are shenanigans afoot and it’s making me ornery.
You see, there’s this case, Jackson Women’s Health Organization v. Dobbs, that involves a no good very bad unconstitutional law in Mississippi that bans abortion at 15 weeks’ gestation. Two lower courts have already blocked the law, but Mississippi decided to be real Mississippi about it and filed an appeal. And so the case is now sitting at the Supreme Court.
The constitutionality of this law isn’t a matter of debate—or at least it shouldn’t be. Under 48 years of Supreme Court precedent, pre-viability abortion bans are always unconstitutional. Always.
So why has the Supreme Court been sitting on Mississippi’s appeal for months? The Court has relisted it for conference seven times this year. And that’s on top of the eight times the case was relisted for conference last year. (“Relist” means the Court has considered a case, decided not to take any action on the case, and will consider the case again at their next private conference.)
So what does that mean? Well it could mean a few things. Maybe the Supreme Court has decided the law is so constitutional that it’s ridiculous the two lower courts said that it is unconstitutional and the Court is going to decide the case without briefing or oral arguments. The Court could feasibly just up and decide to reverse Roe v. Wade with no debate. Highly unlikely. But not impossible.
Or maybe the Court is going to decline to take the case—because the law is well settled in this area and there’s nothing for the Court to decide—but is waiting for Clarence Thomas to rant about eugenics, Margaret Sanger, and how Planned Parenthood is turning Black babies into ice cream.
Or perhaps more likely, the Court is going to take the case—even though there is no reason to—and is waiting for Sonia Sotomayor to write a dissent so fiery that it is it’s own energy source.
Or maybe the Court is trapped under something heavy.
Oh no, are the justices trapped under something heavy? Is there someone I should call? Now I’m slightly concerned.
Hopefully Thomas is putting the final flourishes on his dissent from a decision to deny review because Mississippi’s defense of its 15-week ban is utter nonsense. States cannot ban abortion before viability, and no fetus is viable at 15 weeks. Even Mississippi concedes that no fetus is viable at 15 weeks. The district court struck down the law because no fetus is viable at 15 weeks. Even the ultra-conservative Fifth Circuit Court of Appeals struck down the law because—you guessed it—no fetus is viable at 15 weeks. There’s no reason for the Supreme Court to take this case.
But we’re living in Justice Amy Coney Barrett’s world now, and if the conservative wing of the Court can conjure up a reason to take the case, then that’s what they’re going to do. So, unfortunately, it’s more likely that Sonia Sotomayor is spitting fire and the rest of the justices are waiting for her to stop. Certainly Barrett must realize how desperate a handful of states are to reverse Roe. (Yes, I’m looking at you, Arkansas!) After all, that’s basically why she was put on the bench. Mississippi’s message to her is basically, “Just grant the case and then tell us what you need us to say so we can get right down to that forced birth agenda.”
Lawyers for the state of Mississippi are shameless when it comes to defending its ban, making arguments one might expect from Lionel Hutz, attorney-at-law.
Mississippi Attorney General Lynn Fitch, for example, has argued that the abortion ban isn’t really a ban. It’s merely a regulation. It doesn’t ban abortion at 15 weeks. Heavens, no! It simply regulates the time period during which you can get an abortion. It’s totally different! (Arkansas has made this argument multiple times, and it never gets less embarrassing.)
Besides, even if it is a ban, Casey doesn’t say all pre-viability abortion bans are unconstitutional!
But that is exactly what Planned Parenthood v. Casey says. In Casey, the Court said, “viability marks the earliest point at which a State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”
That should be the end of the discussion. Unless the Court is planning on dismantling the viability test in favor of god-knows-what, Mississippi’s appeal should be summarily tossed into the bin.
But nope. Mississippi is insistent that sometimes pre-viability abortion bans are constitutional and in order to decide whether a pre-viability abortion ban is constitutional, the Supreme Court must determine whether the law is an undue burden. After all, that’s what Casey says—an abortion restriction imposes an undue burden if it places a substantial obstacle in the path of a person seeking a lawful abortion. Mississippi is arguing that pregnant people can’t even get an abortion in Mississippi after 16 weeks, so it’s not a burden to cut abortion off at 15 weeks. What’s the big deal? After all, it’s just one week. How many people are really going to be burdened because they can’t get an abortion in the 15th week? Too few to count.
Except that’s not how it works. The Supreme Court has said that states have an interest in potential life, and can regulate abortions throughout a person’s pregnancy in order to promote the health of the pregnant person. But states may not ban abortion before viability. Doing so is an inherent undue burden.
This is not up for debate. Or at least it shouldn’t be. After all, in Casey, the Supreme Court said, “Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding.”
And what is the holding in Roe? “Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”
Should I type that louder? A STATE MAY NOT PROHIBIT ANY WOMAN FROM MAKING THE ULTIMATE DECISION TO TERMINATE HER PREGNANCY BEFORE VIABILITY.
Would it surprise you that Mississippi wants to do away with the viability standard altogether? Attorneys for the state know that they lose under the viability standard.
So that’s why it’s puzzling that the Court is taking so long in deciding whether to take the case. I would bet money that Barrett, Thomas, and Alito want to take the case. Maybe they’re having difficulty convincing any of the other Federalist Society justices to take the case. They only need one more. What’s the hold up?
The justices are set to conference on the case on Friday. I guess we’ll just have to wait and see if they take it, deny it, or relist it and kick the can down the road some more.