When Justice Ruth Bader Ginsberg died in September, 2020, she was remembered as a trailblazer and protector of women’s rights, first as a lawyer, and then as a Justice of the United States Supreme Court. Her absence within the Supreme Court following her death, however, may have dealt a significant blow to all of the progress she had made for women’s rights within the United States. President Trump appointed Amy Coney-Barret to replace RBG shortly after her death. This was Trump’s third appointment to the Supreme Court and solidified the Court’s conservative majority. Opponents of abortion celebrated Justice Coney-Barrett’s appointment and have recently begun taking steps to overturn Roe v. Wade.
The Supreme Court decided Roe v. Wade in January 1973, striking down a Texas law banning women’s right to abortion. In Roe, the Court upheld that the Fourteenth Amendment of the U.S Constitution protects the right to privacy, which extends to a woman’s right to make the most personal decision of whether or not to continue a pregnancy. The ruling, created by Roe, prohibited States from banning abortion before “fetal viability.” In other words, women were free to obtain abortions before the time a fetus could survive on its own outside the mother’s womb – which is about 24 weeks. Roe v. Wade’s ruling was later reaffirmed by the Supreme Court in a 1992 case called Planned Parenthood v. Casey, in which the Court struck down a Pennsylvania law that severely limited abortion access. Between the Court’s decision in Roe in 1973 and the present, various states have attempted to pass laws curtailing a woman’s ability to obtain an abortion, but these laws have historically been struck down by the Supreme Court, through citing Roe and Casey.
Believing that Trump’s presidency would usher in a conservative Supreme Court, states including: Mississippi, Texas, Arkansas, Georgia, Tennessee, Utah, Indiana, among others, rushed to pass laws limiting abortion access knowing that a newly conservative Court could be able to overrule Roe and Casey. In 2018, two years after Trump’s election, the State of Mississippi passed a law banning abortions after fifteen weeks of pregnancy, well before the previously defined period of “fetal viability.” Jackson Women’s Health Organization, one of the only providers of safe abortions within Mississippi, sued the state, arguing that the Mississippi law had to be struck down because it violated the rulings of Roe and Casey. This case is referred to as Dobbs v. Jackson Women’s Health Organization. The District Court overruled the law, and the Court of Appeals for the Fifth Circuit affirmed the District Court’s ruling relying on Roe and Casey. The Supreme Court granted certiorari, deciding to take the case for consideration. On December 1, 2021, the Supreme Court heard oral arguments, in which lawyers from Mississippi and Jackson Women’s Health Organization answered the Justices’ questions. Justice Sotomayor, appointed by President Obama, led the questioning for the Court’s three liberal Justices. She made clear that over the last fifty years, the Supreme Court has consistently protected the women’s right to choose, upholding the rulings of Roe and Casey. She argued that to overrule this precedent just because of a “change in Court personnel” would be an impermissible political act. She also pointed out that the right to abortion was based on the 14th Amendment’s right to privacy, and if the Court were to overthrow Roe, other privacy rights would be put in jeopardy. This included the right to use contraception, the right to marry people of another race, and the right to gay marriage.
Justice Coney-Barret led the questioning on behalf of the conservative wing of the Court. In her questioning, Coney-Barret clearly expressed her disapproval for the right of abortion, suggesting that a woman, who was unable to raise her child, could simply drop off her newborn at a hospital or a fire station, for the baby to become a ward of the state. Justice Kavanaugh, on behalf of the conservatives, acknowledged that women’s health is an interest that the government should protect but concluded that when the health of a woman conflicts with the health of a fetus, the state should be able to decide what is more important. Chief Justice Roberts, though affiliated with the conservatives of the Court, was trying very hard to strike a compromise. His questioning demonstrated his desire to uphold the Mississippi law, while simultaneously upholding Roe and Casey. For example, Justice Roberts proposed that states could follow Mississippi and ban abortion at 15 weeks, but not before. The lawyer for the Jackson Women’s Health Organization responded that this compromise would not work because, if Mississippi was free to ban abortion at 15 weeks, other states would push that limit and ban abortion much earlier.
Based on these oral arguments, it is fair to assume that there will be five votes in favor of overruling Roe v. Wade. Much of Justice Ginsberg’s work towards protecting women’s rights would be reversed. The expected result in Dobbs v. Jackson would be a seismic shift for women in America, where abortion could be completely unavailable in at least 20 states, only allowing women with means and resources to travel to permitting states, such as New York and California, to exercise their right to choose.
