The start of the 2021-2022 term of the Supreme Court this week has focused attention on a number of major cases the justices will decide during the next nine months. They include hot-button issues like gun safety and control, the death penalty, immigration, religious rights and freedom of expression under the First Amendment and a panoply of other appeals among the two dozen or so currently on its docket, with another few dozen to be added during the term.
But the marquee matter undoubtedly to be decided in the upcoming months is the high-profile abortion case. No, not the six-week, private party-enforcement law in Texas that was put on hold Wednesday but one from Mississippi, a forerunner of the Lone Star law.
Gasps and glee
Reproductive rights advocates gasped last spring when the court agreed to hear the case, and they warily view the hearing scheduled in early December of Dobbs v. Jackson Women’s Health Organization, which will adjudicate the validity of a Mississippi law that caps most abortions at 15 weeks, unless for a health emergency or “severe” fetal abnormality, accompanied by other restrictions, and absent any exceptions for rape or incest. They fear a ruling on the statute might mark a rollback of the reproductive rights established by the 1973 Roe v. Wade ruling, including the unlimited permissibility of abortions during the first trimester, restricted access to abortion in the next trimester prior to viability of a fetus, and exceptions for the life or health of the other in upon fetal viability in the third and final one. Even worse, they fear the timing could dismantle Roe altogether, turning the matter over to the states, more than half of which are poised by present or prospective legislation to limit or, like Texas, essentially eliminate abortion rights.
But their adversaries are gleeful, seeing the same potential consequences and hoping they
occur, a development they have been waiting for decades to achieve. Although the high court has addressed a number of cases imposing various abortion restrictions since Roe, the doctrine has shakily survived for the most part. The new case from Mississippi will be its first head-on challenge, and it is of particular interest in Minnesota, home state of Roe’s occasionally praised and oft-maligned author Justice Harry Blackmun.
Incidentally, the Mississippi case is not the only or first abortion case to be heard
by the jurists in the nation’s capital this fall. On Monday the court will hear an attempt by the attorney general of Kentucky, a Republican, to try to revive an abortion restriction law invalidated by a court in that state a couple of years ago, a ruling that the governor there, a Democrat, declined to appeal. In Cameron v. EMW Women’s Health Center, the justices will decide if the case can be revived long after the deadline for appeal has passed, a ruling that could, if it goes the way of the challenger, open up a potential floodgate of dormant litigation.
Reversal route
Both of these cases will confront the doctrine of precedent, a concept that augurs in favor of upholding past judicial decisions. But that tenet grounded in maximizing certainty and stability, known in legal circles as stare decisis, is hardly talismanic. In fact, the high court has departed from its own precedent on more than 230 occasions, an average of about once per year, over its 232-year existence. It has done so in a wide variety of contexts, with reversals ranging from high-profile First Amendment litigation to criminal law to employment and labor disputes to more mundane legal procedures and protocols, among other matters.
[image_caption]Marshall H. Tanick[/image_caption]
The Supreme Court’s route to reversal of Roe has been laid out relatively recently by several rulings overturning precedent or signaling its inclination to do so The most notable occurred in a ruling two years ago in Janus v. AFSCME, a labor union case in which the court reversed nearly 40 years of precedent in allowing labor union members to refuse to pay union dues on grounds of the right of freedom of expression under the First Amendment. In the majority ruling in the case, decided by a narrow 5-4 margin, the court laid out six factors to be considered in overturning past precedent, a standard articulated in other cases as well.
The six fatal factors
The prospect for overturning Roe may turn on a number of these considerations when the justices take up the Mississippi case. The half-dozen factors delineated for reversal in the Janus case, may be fatal to Roe’s vitality. Here‘s how it could happen. The first prong of the route to reversal is whether the decision was one of constitutional law, where the court in the Janus case deemed adherence precedent is “weakest.” Roe meets this standard because the decision written by Justice Blackman was strictly based on constitutional reasoning under the implicit right of privacy under the Ninth Amendment to the U.S. Constitution.
Whether the Roe case was “wrongly decided” is another explicit factor in determining whether to follow or depart from it. Although none of the current justices was there at the time of Roe, a 7-2 decision, a number of them have passed upon post-Roe issues and a few have expressed their view that Roe was not only an aberration, but an abomination. The Mississippi attorney general’s office has signaled that this prong will be a major target in the state’s argument, calling the Roe decision in its legal briefing “egregiously wrong.” This theme also has emerged in some other lower federal courts addressing Roe-related issues over the years, suggesting that the “wrongly decided” factor might be a fertile field for plowing Roe under the surface.
The “quality” of the reasoning of the Roe case is another consideration that might cut against its survival. Even some of who support the outcome of that case, a right of “choice” for women under an implicit but not explicit constitutional right of privacy under the Ninth Amendment have questioned whether the decision was properly premised on that provision. The late Justice Ginsburg, a strong Roe advocate, stated that the ruling should have been based upon denial of equal protection, a view shared by Harvard Law Prof. Lawrence Tribe, a well-known constitutional scholar and highly successful Supreme Court advocate.
The “workability” of the Roe doctrine is another factor that comes into play. The trimester-viability concept embedded in the Roe decision, regulating abortions relative to the duration of the pregnancy, has raised questions of its feasibility.
The status of “different” legal rulings and new developments over the years, another factor cited in the Janus case, also could militate against maintenance of the Roe rationale. A number of differing legal rulings have been issued by the court throughout the years, including the Supreme Court, itself, which impose restrictions on reproductive rights including limited pre-abortion waiting periods and parental notification and consent requirements, among other limitations. Those inroads on the margins of the Roe doctrine provide a route for its reversal.
The final factor, whether there has been “reliance” on the Roe doctrine, is a tricky one. That consideration is most applicable in business and commercial matters, not matters of personal choice. But defenders of Roe may be hard pressed to convince a tribunal that women have relied upon Roe in becoming pregnant, and supporters of the Mississippi measure may pounce on that factor in arguing that women (or make partners) do not engage in reliance on Roe in carrying out their daily lives.
These half-dozen factors and, perhaps others, may be central to the Supreme Court’s consideration in deciding whether to retain or restrict the Roe ruling. In the meantime, both advocates for Roe and its antagonists, are gearing for what may be an abortion Armageddon soon at the high court.
Marshall H. Tanick is a constitutional law attorney and historian with the Minneapolis law firm of Meyer Njus Tanick.
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“based on constitutional reasoning under the implicit right of privacy under the Ninth Amendment to the U.S. Constitution.” I thought it was the 14th Amendment.
Well, the fact is that Republican pro life judges have been placed on the court to get rid of Roe. It’s merely a question of how they do it at this point. All the reasoning that surrounds it is so much hot air.
As with any hard and unpleasant job, whether it’s cleaning out the gutters, or overturning popular precedents, the temptation is to get someone else to do it. It’s the Tom Sawyer theory of appellate law. Republicans on the Supreme Court want to get rid of Roe. It’s what they were hired to do. But the job isn’t as easy as it might seem. Up to now, their efforts have been directed toward more practical solutions. While not overturning Roe, they have enabled state legislatures who choose to, to make abortions difficult to obtain. The Texas law the Supreme Court ruled in favor of, carried that to very nearly the final extreme, but their hand sort of got caught in the judicial cookie jar and it’s in the process of getting slapped away. But in the law there are always to do things honestly even if the natural tendency of the kind of lawyers who end up on the court is to be sneaky. For this court, and the Republican justices, honesty and dignity might not just be the last resort, but the only resort.
Something to keep in mind is that there is only so much the court can do. It can uphold state laws banning abortion but it can’t enact them, at least enacting them isn’t currently in the legal cards. Once Roe v. Wade is gone, the battle will shift elsewhere, and Supreme Court Republicans will be relieved that the heat will shift elsewhere.
The more important question is Will our present form of Government survive this present ‘canned’, ‘stilited’ Supreme court makeup ?
A solid majority of the women on the court will support women’s choices to make their reproductive choices. Five conservative men will make the decision, likely with the support of a conservative woman raised to be subordinate to men. A simple truth. We would not have so many unwanted pregnancies and abortions if it weren’t for criminal and irresponsible men.
First, the rapists and pedophiles. There are conservative men who think that rapists should have parental rights and evade criminal charges if they marry women they raped. Now these same men want to compound the crime by revictimizing the victim by not allowing abortions. Even if convicted, many will get out of prison before the child of rape turned 18.
Second, the guys who don’t want children, but take no responsibility for birth control. There is a male contraceptive. Use it or keep it zipped. She didn’t “make you do it.” Admit it – it was your idea, as you subscribe to the “boys will be boys” mind-set.
Third, stealthing, “the practice of a man removing a condom during sexual intercourse without consent, when his sex partner has only consented to condom-protected sex. Victims are exposed to potential sexually transmitted infections (STIs) such as HIV/AIDS, or unwanted pregnancies.” Stealthing is considered sexual sexual violence in Germany and the United Kingdom. This week California was the first state to criminalize it. Not a crime elsewhere – yet.
Fourth, conservatives talk about a lot about being faithful, but might majority of women considering abortion had an irresponsible man happen to them? Some men may claim to be pro-life, but carve out an abortion exception for themselves when it is their mistress, girlfriend or daughter. Wealthy families have and will always have access to abortion, even though they can easily avoid raising a child in poverty. When most people can only afford to raise one or two children, why do we force single women to raise them under adverse circumstances?
Finally, two conservative male justices had credible accusations of sexual harassment or assault, but both were confirmed because male Senators believed their denials rather than their accusers. Lack of consequences for most men who commit sex crimes and abandon pregnant women is a big part of why women consider abortion. They hear conservatives saying they love babies, but these same people allow babies of single mothers to grow up in poverty.
There will be horrible consequences for poor children and their single mothers if Roe v. Wade is overturned. Kid glove treatment for the men who put women in this predicament must end.
“They fear a ruling on the statute might mark a rollback of the reproductive rights established by the 1973 Roe v. Wade ruling, including the unlimited permissibility of abortions during the first trimester, restricted access to abortion in the next trimester prior to viability of a fetus, and exceptions for the life or health of the other in upon fetal viability in the third and final one. ”
Is it true that Roe and other decisions actually put the prescribed limits mentioned above on Abortions?
Actually, the Supreme Court decisions allowed the states to place those proscribed limits on abortion while disallowing the states to place other proscribed limits, based initially on the trimester framework and later modified by the viability framework.
So the statement in the article is not true?
I don’t know what’s going to happen, but if this court turns women into second class citizens with no privacy rights, we have moderate Democrats to thank for that outcome. For decades the would-be champions of women’s right have hid behind Roe as if it was some kind of impregnable wall determined Republicans could never breach. Instead of powerful and unapologetic advocacy for abortion rights, democrats dodged the debate for decades because they were afraid it would blow back on them somehow. As recently as 2015 HRC was willing to “negotiate” more abortion restrictions rather than demand unconditional abortion rights.
The ongoing and decades long campaign to repeal Roe has been no secret, yet those who claimed the to be the defenders of abortion rights missed every opportunity to confront the threat head on.
Roe WAS about privacy, yet where is the defense of that privacy? If Americans understood clearly the fact that challenges to Roe are based on the claim that we have no constitutional right to privacy, if people knew that they were trading their privacy rights for abortion rights… how far would this campaign have gone? Yet Democrats avoided direct confrontation like the plague and here we are. Whatever.
What is certain to happen is that the Supreme Court will create a pathway for legislatures who want to do it, to make abortion illegal in their states. The form that will take is both unpredictable and irrelevant. My guess is that lots of legal gobbledygook will be involved.
For many Republicans, abortion is the bus they couldn’t catch, which they wouldn’t know what to with it did. The great virtue of Roe v. Wade for the Republican Party was that it took the difficult issue off their desks. Now that Roe v. Wade is about to be gone, Republican legislative desks will be exactly where that difficult issue and lands, and for the first time in nearly five decades, they will have to decide the fates of young women who end their pregnancies. Ironically the power to make these decisions comes at a time when Republican officeholders have entirely lost their moral credibility.
Here is a very bad case scenario. What happens when those Republican legislators who know longer have a Supreme Court that will save them, make abortion a serious crime? What happens when we have a divided country where the commission of an act is regarded as murder in one half of the country, in geographical terms, isn’t a crime at all in the other half of the country? Abraham Lincoln asked whether a nation could continue to exist half slave and half free? What is the answer to the equivalent question about abortion?
“Republican officeholders have entirely lost their moral credibility.”
People who demand the right to kill their offspring shouldn’t be questioning other people’s “moral credibility.”
So you really think criminalizing unwanted pregnancy is gonna get you where you want to go huh? Mass incarceration of your wives and daughters? Cuz it ain’t OUR kids winding up down that path. WE actually teach them something other than supernatural fear.
That isn’t something I would say about Republicans or anyone really.
I think a more serious question is what kind of country will we live in when whether or not a woman is a second class US citizen depends on what State she lives in?
Well, there’s no doubt the (democratically-illegitimate) “conservative” super-majority will uphold the 15 week cap imposed by MS Repubs. And they don’t need to reverse Roe to do it, because they can simply say the law is not an “undue burden” on the (increasingly non-existent) reproductive right, which is what they usually have done since Casey in 1992. When a judge has nothing but contempt for the “right”, then no restriction is ever an “undue burden” on it….
If the “conservatives” do decide to address the question of overruling Roe, then of course they will end its existence as federal constitutional right. The six “factors” supposedly used to “determine” whether to overrule a case or not are just so much nonsense and hand-waving; any desired result can be obtained by using (or abusing) the words of the test, not to mention how to “balance” the factors. The words of the test are (in themselves) totally indeterminate.
Reversing Roe is an outcome based decusuib. In Gilbert and Sullivan terms, the verdict was reached long before the trial was started. The Republicans are simply being dishonest by not acknowledging that, particularly at their confirmation hearings.
The deeper problem for the court, the one CJ Roberts senses I believe that at some point the executive branch is simply going to reject a Supreme Court’s ruling, which I believe will be the end of the Supreme Court as an effective branch of government. I thought Trump might do it over the census issue, but he backed down, as cooler and even wiser heads have prevailed. Republicans have worked for decades to take control of the courts, particularly the Supreme Court. It is one of their few actual policy objectives. After finally succeeding taking control of the federal judiciary for decades to come, it must have been so frustrating to see Trump risk it all over a minor issue.
The reason the Right has made it a point to take over the courts is because they observed that virtually ALL of the Left’s victories have not been through legislation but through the courts who had been friendly to their cause(s) for 50 years. It was time to reverse that if we had any intention of maintaining a free society.
A free society? This is literally about restricting women’s freedom.
“I believe that at some point the executive branch is simply going to reject a Supreme Court’s ruling, which I believe will be the end of the Supreme Court as an effective branch of government.”
The Trail of Tears occurred despite the Supreme Court ruling in Worcester v. Georgia (1832) that favored the rights of Native Americans. In response to the ruling, Andrew Jackson allegedly said, “John Marshall has made his decision, now let him enforce it.”
Yeah, the right loves him, but you knew that already. But then, you throw in with the most horrible racists imaginable, for the sake of power, so it is what it is.
I don’t think the left, over the history of our republic, has done particularly well in the Supreme Court. I believe that Supreme Court jurisprudence is much better characterized by Plessy v. Ferguson, than it is by Brown v. Board. When Justice Alito groused about being held responsible for the entirely foresseable immediate consequences of his decisions, my first thought is that this is a guy who would have joined the majority in Dred Scott.
When we think of the Supreme Court as a liberal institution, we are thinking mostly of the Warren Court, which I believe constituted a brief interlude in an otherwise conservative and regressive institution. And what were the decisions that created the Warren Court’s reputation for liberalism? The hallmarm decision of Warren Court was Brown v, Board which held that segregated public schools were unconstitutional. Do conservatives today want to disagree with that? Do they want to argue that segregated schools reflect conservative ideology and values? I truly hope not, and I don’t think that it does. Other famous Warren Court decisions had to do with criminal law and criminal procedure, and on occasion sexual privacy. Do conservatives today want to deny attorneys to poor people accused of serious crime? Do they really want to return to the days of beating confessions out of suspects in police station houses? Before using birth control, do you and your spouse really feel a need to get Newt Gingrich’s okay first?
The problem is that the answer to all of those questions is mainly yes. I guess some don’t quite get, (or fail to believe) that the exact sort of world favored by conservatives is outlined quite nicely by your questions. Minorities and the poor should know their “place”, below the white and powerful, the courts exist to remind them of that place, and to protect the interests of the white and powerful, and those groups need to procreate to provide more servants for the white and powerful. Why is it so hard for some to listen and believe when people explain exactly who they are, and what they desire to do?
It is said that when Franklin Delano Roosevelt was president dealing with the ovewhelming problems of the Depression, he observed to one of his economic observers that everything he learned in college was wrong. I often feel that way, that all the legal theories, all the noble precedents, all the legal history, that for me defined my understading of the constitutional framework in that long ago junior high school social studies claass that defined what the United States of America was for me have turned out to be wrong. The jurisprudence of the Warren Court wasn’t any sort of culmination of history where after a long struggl in our history, it was simply a variation of the norm, an outlier, a constitutional hiccup.
It’s a valid position to see the Supreme Court as essentially a reactionary institution, at least since the days of Reconstruction and the (first) Gilded Age. But don’t forget the visionary rulings of the early 19th Century Marshall Court, which were often flouted by a lawless executive, Trumpolini’s hero, Andrew Jackson ( as nicely quoted by Mt Tester above!)
The modern Court (and nation) obviously had a strong counter-reaction to the Warren Court era, with massive cutbacks to the various criminal procedural rulings for which the Warren Court was/is famous. But even most of the Repubs put on the Burger/Rhenquist Courts would not overrule Roe, for example. It took the creation of the Federalist Society as a vetting grounds for radical “conservative” judges before Repub presidents could reliably obtain the kind of extremist Court that is now overruling long-standing precedents and creating phony new “rights” that conservatives wanted. But overruling Brown is a bridge too far even for them.
When you talk about “the culmination of the long struggle of our history” and the role the Court has played in it, never forget that the modern “conservative” movement hijacked both our history and the Court, cynically using the disastrous anti-democratic mechanisms of the Constitution, and then reveling in the unprincipled power-grabs by McConnell and his phony Repub senate “majority”. The people did not want either Bush, Trumpolini or the “conservative” Court majority that those popular-vote losing presidents have created. Had the 5 “conservatives” not bent over backwards to force a popular vote losing president upon us in the Stolen Election of 2000, our history would have been much more as a thinking person expected in 1999, before the advent of the catastrophic 21st Century, which has wrecked both the nation and world.
On every issue regarding abortion, men should automatically recuse themselves from any influence in the decision: It is a women’s issue that should be decided by women.
Or put their skin (fore) in the game and require that any man who father’s an out of wedlock child be subject to an immediate vasectomy. The concept of “actions have consequences” certainly hits home with a newly pregnant woman, sharing that with the man is only fair…
I’m even ok with requiring men to pay for birth control if they want to have sex. Oops! It turns out that lots of men would rather women didn’t have access to that, either! The out of pocket cost of the most effective BC, the BC pill is around $300 annually. That’s assuming your body doesn’t hate the cheapest option. Oh! But wait! There’s more! You can’t get it unless you have an annual physical exam! That’ll cost you at least another $200 out of pocket. But wait! There’s more! You can get a reduced cost physical exam from Planned Parenthood, and reduced cost birth control, BUT WAIT! THERE’S MORE! Some men are trying to ensure that women don’t have access to reduced cost physical exams and birth control via Planned Parenthood (because abortions!). But wait! There’s more! If you don’t want to pay out of pocket for a physical exam or a BC pill prescription, you can get health insurance through your employer. But wait! There’s more! Your employer doesn’t have to ensure that your health insurance covers birth control because Corporations are People with Religion! So, you could get your health insurance independently. But wait! There’s more! When you discover that you can’t afford health insurance independently because it costs a lot more than the physical exam and birth control pills you already can’t afford to pay out of pocket for, you can switch to over the counter methods of birth control, which are MORE expensive AND don’t protect you from situations where you aren’t in control, like rape. Or rape. Or, even rape. There’s always abstinence, I suppose. For women, not men. Because it’s their problem and in any case, men think women shouldn’t want sex unless their men want sex. And it doesn’t matter if women want sex if their men (or random men) want sex, anyway. Because boys will be boys. And then end up on the Supreme Court.
Bravo! Excellent skewering of the endlessly misogynistic legal positions of today’s “conservative” movement and its “judges” (both male and female).
If married white women were to abandon the “conservative” movement, it would be politically annihilated in a single election.