The Supreme Court announced Monday that it would hear Dobbs v Jackson Women's Health Organization, a challenge to a Mississippi law that bans almost all abortions after the 15th week of pregnancy. This means that Dobbs will be the first abortion case to be fully briefed and discussed in the Supreme Court since Judge Amy Coney Barrett's confirmation last October.
Barrett is outspokenly opposed to abortion, and she joined a court that almost certainly had five votes to overturn abortion law before her affirmation gave Republicans a 6-3 majority in the Supreme Court.
Last June, four judges voted to uphold a Louisiana anti-abortion law that was virtually identical to a Texas law that the Supreme Court struck down in 2016. Conservative Chief Justice John Roberts cast a surprise vote on that June case, June Medical Services v. Russo to put Louisiana's law down. Roberts' opinion, however, insisted that he disagreed with many of the court's landmark abortion law decisions and that he only voted as it did in June Medical out of respect for the principle that the court cannot easily make a decision he was only making should ignore a few years earlier.
With Barrett on trial, June Medical's four dissidents no longer need Roberts' voice to make significant interventions in reproductive freedom. And the legal issue in Dobbs is sufficiently different from that in June Medical that Roberts is unlikely to vote with his Liberal counterparts for those reasons.
The legal question in Dobbs is straightforward. A 2018 Mississippi law prohibits all abortions after 15 weeks of pregnancy, "except in the event of a medical emergency or serious fetal abnormality". In particular, this law applies before Fetus is viable – which means it can survive outside of the womb. But, as the Supreme Court has repeatedly affirmed, "a state cannot prohibit a woman from making the final decision to terminate her pregnancy before she is viable."
In particular, the Supreme Court decided to focus its argument in Dobbs on a single question: "Are all pre-viability bans unconstitutional?", Which suggests that the Court could use this case as a means of ending the rule, provided that an abortion patient must make the final decision whether to “terminate her pregnancy before she is viable”.
A conservative federal appeals court has thrown Mississippi law down, and even Judge James Ho, a staunch opponent of abortion, acknowledged that the Supreme Court's existing precedent "sets viability as the definitive constitutional standard."
Now that the case is before the judges themselves, Dobbs is giving the new majority in the court some means by which to overturn this longstanding rule. Indeed, it may give them the option of getting Roe v. To override Wade in its entirety and allow abortion bans.
In addition, the new majority in the court has already signaled that it is keen to withdraw protection for abortion rights. Earlier this year, the Court issued a ruling that allowed the Food and Drug Administration to impose limits on an abortion-inducing drug that it does not impose on any other drug.
The court did not publish a majority opinion in this earlier case, FDA v American College of Obstetricians and Gynecologists, so the American College's decision did not make any explicit changes to the court's existing abortion law doctrine. Still, the American College Court's decision against abortion may well be a foretaste of the future.