The Case that could overturn Roe v. Wade: Dobbs v. Jackson Women’s Health Organization

The U.S. Supreme Court building

The 49th Anniversary of Roe v. Wade was this week (Jan. 20) and many believe that it may be the last such anniversary. Recently, SCOTUS heard oral arguments on case called Dobbs v. Jackson Women’s Health Organization, which centers on a Mississippi law that bans abortions after 15 weeks. In response to this 2018 law, Mississippi’s only remaining abortion clinic filed suit, and the law was blocked in the lower courts since it flagrantly violates the constitutional right to pre-viability abortion established under Roe v. Wade. (More on these cases here). The Supreme Court is likely to rule on this case in June, 2022.

The Supreme Court oral arguments on Dec 1, 2020 gave most observers the impression that Roe is likely to be overturned, or at the very least, that the ‘viability’ limit to state abortion bans will be removed. Much has been written about Justice Amy Cony Barrett’s suggestion that the availability of adoption means that abortion isn’t necessary, and that Chief Justice John Roberts said that the vast majority of countries around the world outlaw abortion before viability, and that Justice Kavanaugh made it seem like overturning prior precedent is something the Court does regularly. We think all of these arguments are fundamentally wrong–more info below!

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Legal Overview and Oral Arguments

For reference:

  • Full text of the law
    Note: this law bans all abortions after 15 weeks unless a “medical emergency” or “severe fetal anomaly” occurs. Nobody knows how these two terms are defined legally, so doctors would be afraid to provide an abortion under these exceptions for fear of violating the law. Additionally, it provides no exception for rape or incest.

Analysis

Amicus Briefs

An amicus curiae (“friend of the court”) or amicus brief is a statement by persons or organizations that are not party to a particular case, but that offer their opinion or expertise on the case. A court may choose to consider the brief, or not. There are many amicus curiae that were filed in this case:

For a summary of the briefs:

For a list of all the briefs (in chronological order of filing):

What about precedent?

During Judge Kavanaugh’s confirmation hearings, he stated plainly that he thought 50 years of precedent would make it unlikely that Roe would be overturned. During oral arguments in Dobbs, he listed many Supreme Court cases that were later overturned and seemed to have a different opinion.

In the context of other SCOTUS cases, is it normal to overturn precedent such as Roe? 

Why does anyone need an abortion? Why not adopt?

Justice Amy Coney Barrett has 7 children, 2 of whom are adopted, and she asked why the ability to place a baby up for adoption doesn’t make abortion unnecessary altogether.
There are many answers. The physical dangers of pregnancy are clear: in this country, a person is 10-14 times more likely to die in pregnancy than if you have an abortion. BIPOC folks are at even higher risk. Pregnant people are at increased risk of intimate partner violence, dying from homicide or suicide (related to baseline psychiatric problems or peripartum depression), and increased risk of pregnancy complications that can have lifelong impacts, or worse. There is lots of research showing that lack of abortion access also has psychological, economic, and career impacts. And no, it’s not just association–newer research shows that it’s causal.

Expert opinion/data

  • Mississippi Asks: If Women Can Have It All, Is Roe Necessary?
  • ‘One argument in the abortion case before the Supreme Court is that balancing work and family is now less of a challenge, but research shows becoming a mother still has a large economic impact on women.’ 12/1/2021 | New York Times – The Upshot | Claire Cain Miller
  • Sociologist says women are more likely to choose abortion over adoption (Audio, 4 min) 12/3/2021 | National Public Radio – All Things Considered “Adoption is often the result of a lack of power… Framing of adoption glosses over the extent to which adoption is often the result of a lack of power and is made from a position of, for some women, desperation and hardship.”
  • Study Examines The Lasting Effects Of Having — Or Being Denied — An Abortion (Audio, 36 min) 6/6/2020 | National Public Radio – Fresh Air | Terry Gross & Diana Greene Foster This interview about the Turnaway Study breaks down the main findings of this landmark study on abortion care examining physical, mental health, economic, educational, and many other outcomes. Most prior research that tried to do this failed because of a fatal flaw–those studies used the wrong comparison group. Professor Greene Foster explains how her study was different…

Personal stories

What if Roe is overturned?

What do Americans think of Roe?

It’s hard not to see the protests as evidence that we’re super-divided, and in some ways we are. But if you look at general trends, most people are in favor keeping abortion legal, and that hasn’t changed in 50 years.

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