In the case of Dobbs v. Jackson Women’s Health Organization, the state of Mississippi is asking the U.S. Supreme Court to overturn the landmark 1973 SCOTUS decision Roe v. Wade.
When the federal government cedes power to the states (e.g., allowing most of the states now to effectively overturn the scheduling of cannabis in the Controlled Substances Act of 1971, or several U.S. municipalities adopting an official policy of becoming “sanctuary cities” for immigrants in violation of federal immigration policies) it’s called devolution.
As the Supreme Court hears arguments on the case this week, America is witnessing a decades-long, complicated legal question brought to a head in a case that puts the precedents of Roe v. Wade and Casey v. Planned Parenthood on trial for their constitutionality in upholding federal limits on state power to make and enforce policies restricting abortion within their borders.
Proponents of Mississippi’s abortion law aren’t merely asking the Supreme Court to uphold the Magnolia State’s Gestational Age Act of 2018, but to overturn Roe v. Wade entirely, arguing the state’s law is constitutional because Roe v. Wade isn’t.
The Mississippi law made abortion illegal after 15-weeks (making an exception for medical emergencies and severely abnormal pregnancies). It’s the first of several new restrictive state abortion laws that defy Roe v. Wade that has made it to the Supreme Court. The high court decided to take up Dobbs v. Jackson in May.
Texas’ even more restrictive abortion law, the Texas Heartbeat Act that prohibits abortion after a second heartbeat is detected (usually occurring around six weeks after conception), has reportedly led to a decline in abortions in one of the most populated U.S. states much as 80%.
Because the anti-abortion “Pro-Life” movement has been millions strong in the U.S. for decades and consistently politically active to fight what they see as this living generation’s most terrible and urgent civil and human rights crisis state challenges to Roe v. Wade were inevitable after President Donald Trump appointed three new justices in one term: Justices Neil Gorsuch in 2017, Brett Kavanaugh in 2018, and Amy Coney Barrett in 2020.
Now with Roe and Casey on the chopping block, mainstream news sources from the Associated Press to local news affiliates, and NBC News and the New York Times seem to broadly agree since the court took up oral arguments Wednesday, that the most conservative SCOTUS we’ve seen since Roe v. Wade appears likely to overturn it.
For one, Justice Clarence Thomas, who has gone years at a time without saying a word in oral arguments, was very active in the oral arguments Wednesday, Ben Domenech reported at The Federalist. Leah Litman reported at NBC News that the court’s conservatives “could overturn Roe v. Wade over” the word “viability.” A crucial part of Mississippi’s case is that modern technology has given us more insight and understanding about pregnancy than we had in the 1970s.
The New York Times reported the “Supreme Court seems poised to uphold Mississippi’s abortion law,” but that it’s unclear if Roe v. Wade will be overturned in this case.
In oral arguments, Supreme Court Justice Sonia Sotomayor said the move to overturn federal abortion precedents appeared politically motivated: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
That’s the question many legal theorists, such as her late colleague, Justice Antonin Scalia, were asking about Roe v. Wade because of what critics saw as the unusual amount of extra-constitutional legal construction in that decision.