“No is a complete sentence.”
That’s a clever phrase I taught my children when I first introduced the concept of consent. No. With one word, you communicate so much. Know how to use it.
On Monday, the Supreme Court announced it was stepping right back into the abortion rights fight. Last year, Mississippi begged the Court to bless its efforts to enact a pre-viability abortion ban. But because pre-viability abortion bans are always unconstitutional, the Supreme Court should have answered Mississippi’s plea with a simple no.
No is a complete sentence, after all.
Nearly 50 years of Supreme Court precedent on abortion rights tells us clearly that a state does not have the power to ban abortion until a pregnancy reaches viability. Not before. The state’s power is what we are talking about here—to dictate how and when people reproduce.
The Court has spoken very clearly on this point. Before fetal viability—the point at which a fetus can meaningfully exist outside the womb and without medical intervention—states can do all sorts of things to make getting an abortion more difficult, more complicated, and more expensive. And after fetal viability? After fetal viability, states can ban abortion outright, if lawmakers so chose. But not before.
Roe is gone. The chaos is just beginning.
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All of that is very likely to change, thanks to the Court’s actions on Monday.
In choosing to hear Dobbs v. Jackson Women’s Health Organization, the Court’s conservative majority sent a clear signal that the law around abortion rights as we know it is about to change. How? I’ll get into that in a second—first, some background.
At issue in the case is a gestational ban. Gestational bans outlaw abortion at a specific point in pregnancy—in this case, 15 weeks. Why 15 weeks? Who knows—anti-choice lawmakers certainly don’t. Gestational bans are arbitrary nonsense that have nothing to do with the responsible practice of medicine; they have everything to do with politicizing perceived moral discomfort around later abortion. And that’s why conservatives love them so.
Everyone agrees that no pregnancy is viable at 15 weeks. Literally everyone! This includes Mississippi attorneys defending this ban who concede that at 15 weeks, no pregnancy is viable and that makes the Mississippi law an unconstitutional pre-viability abortion ban.
In fact, everyone agrees so hard on this point that there is not a single federal appeals court decision upholding a law like Mississippi’s. Not one! And it’s not like the federal courts haven’t had a chance to think about this question, either. Alabama. Texas. North Dakota. Arkansas. Mississippi, except for a six-week ban. These are all federal cases I can recall without doing a Google search or pulling up my case list that had this question at its core—are pre-viability abortion bans always unconstitutional? In every instance—INCLUDING THIS CASE—the federal courts have looked at the law and come to a concise conclusion.
Yes, pre-viability bans are always unconstitutional.
But Monday was different. On Monday the Court’s conservative wing made it clear that the answer to that question—are pre-viability abortion bans always unconstitutional—is at least a maybe but probably really no.
It takes four justices to decide to take a case. It takes five justices to decide to change the law.
We all need to let that settle in for a minute. Because the easiest thing for the Supreme Court would have been to stay out of this case. None of the traditional markers for taking up a case exist in Jackson Women’s Health. None. There is no circuit split—a disagreement among the appeals courts regarding the constitutionality of pre-viability abortion bans—that the Supreme Court needs to resolve. There’s no brand-new question of constitutional law the Court needs to decide. The only thing that exists is the political will of the Court’s conservatives to strike on abortion rights now.
We have at least a year before we know how the Court decides this case, but I think we already know, don’t we?
In one scenario, the Court’s conservatives just go for it. They let Justice Amy Coney Barrett really open up in the opinion she’s waited for her entire career to write. I’d bet she finds a way to cite the late Justice Ginsburg here in explaining how gutting reproductive autonomy is actually amazing for gender equality and call it freedom.
In another scenario, the Court strikes down the Mississippi law and still guts abortion rights. That’s the real danger of this case as I see it.
The question as teed up for the Court doesn’t even depend on the justices endorsing the Mississippi ban. It is by its nature a thought exercise about the durability of Roe v. Wade, Planned Parenthood v. Casey, and the basic constitutional underpinning of all reproductive freedom. The issue is “whether all pre-viability prohibitions on elective abortions are unconstitutional.” That’s not my shorthand. That is the only question this Court is going to answer when it hears arguments in this case later this fall. The question becomes: What is the answer?
It very well could be no. And no is a complete sentence.
The Supreme Court could decide that Mississippi’s 15-week ban is a bad-faith effort to undercut abortion rights and still issue a decision that decimates those rights by agreeing with Mississippi that, generally, states can ban abortion before viability, even if not in this case specifically. The justices could find that the Mississippi law goes too far in banning what advocates call “elective abortions” but that because of advances in medical technology, or what the conservative justices perceive as changing public attitutes around abortion, now is the time to upend the law protecting access.
Such a ruling would give the 200-plus Trump judges on the federal courts the green light to uphold any restriction anti-choice lawmakers dream up while simultaneously giving anti-choice lawmakers the green light to continue to fundraise off the big evil of Legal Abortion. Nevermind that in over 20 states, such a ruling would eliminate abortion access altogether, leaving patients across the country to pay an unspeakable, devastating toll.
No is a complete sentence. We’ll know just how complete next year.