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Will Roe survive new Supreme Court case, or is this the term it falls?

Two years ago, by a narrow 5-4 margin, the high court laid out six factors to be considered in overturning past precedent.

Hannah Wolfe, left, protests against abortion rights as Laurie Arbeiter protests for abortion rights in front of Wolfe, outside of the U.S. Supreme Court building in Washington, D.C.
Hannah Wolfe, left, protests against abortion rights as Laurie Arbeiter protests for abortion rights in front of Wolfe, outside of the U.S. Supreme Court building in Washington, D.C.
REUTERS/Leah Millis

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.

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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.

Marshall H. Tanick
Marshall H. Tanick
Lower federal courts have overturned statutes making these Mississippi-type inroads into Roe at least a dozen times, and the high court has refused to review those decisions as recently as five years ago. But the composition of the tribunal has markedly changed with the death a year ago of Ruth Bader Ginsburg and retirement in 2018 of Anthony Kennedy, two abortion rights supporters, coupled with three appointees by former President Trump, resulting in a current 6-3 conservative majority.

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.

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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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