Jeffrey Hannan
In Jackson Women’s Health Organization v. Dobbs, the Fifth Circuit struck down a Mississippi law prohibiting abortion after the first fifteen weeks of pregnancy, except in cases of medical emergency or severe fetal abnormality. The Supreme Court now considers that ruling in a case with massive ramifications for the status of abortion in the United States. The question presented is broad: “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.” In ruling on this case, the Court will need to decide whether to overturn the two leading cases on abortion law in the United States, Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. Roe established that prohibitions on abortion before the fetus becomes viable violate the Due Process Clause of the Fourteenth Amendment. Casey provides the “undue burden” standard of review Courts apply to determine the constitutionality of pre-viability abortion restrictions, which Mississippi claims should be overturned.
This commentary will examine the parties’ arguments and assess several possible outcomes in this case. As the respondents convincingly argue, the Court should uphold Roe and Casey and strike down the Mississippi law. The Court should reach this conclusion by finding that these cases were correctly decided, the precedents are workable, the precedents have not been outmoded by legal or factual developments, and the precedents engender significant reliance interests.
