What You Need to Know About the Abortion Case That Just Went Before the Supreme Court
On Dec. 1, the Supreme Court heard arguments on a case involving a 15-week abortion ban in Mississippi. With this case, the court — which comprises a 6-3 antiabortion majority, including three Donald Trump appointees — has the potential to gut legal abortion access across the country, if not undo the precedent of Roe v. Wade altogether.
Dobbs v. Jackson Women's Health centers on a Mississippi law that bans abortion at 15 weeks — before some people even know they're pregnant, and before many of the most severe fetal diagnoses can be detected, though the law claims to offer exceptions in those cases. Even people who know they are pregnant and have made the decision to get an abortion may struggle to do so before 15 weeks, as many face restrictions and barriers that further delay access to the procedure, including the costs of travel, lodging, and child care.
As the first major Supreme Court case since Justice Amy Coney Barrett joined the bench last fall, Dobbs raises many questions about the future of legal abortion care in the US and how to support abortion access no matter the outcome. Here's what to know about the case rattling the country.
What's at Stake in Dobbs v. Jackson Women's Health?
Dobbs v. Jackson Women's Health emerges from a 2018 law in Mississippi that bans abortion at 15 weeks and centers on the question of "whether all pre-viability prohibitions on elective abortions are unconstitutional." Pre-viability restrictions on abortion include any laws that ban abortion care before the fetus is viable to live outside the womb, which is typically between 24 and 28 weeks. Because of the standard set by Roe v. Wade in 1973, pre-viability abortion bans are unconstitutional. The 15-week Mississippi ban in question has faced legal challenges since 2018, and even a conservative federal appeals court struck it down in 2019, in adherence with the pre-viability standard.
Despite the appeals court's 2019 ruling, the Supreme Court and its antiabortion majority could not only uphold the 15-week abortion ban but also reverse the pre-viability standard, and even strike down Roe more broadly. This would leave the right to abortion up to the states — a dangerous scenario, as most states don't include the right to abortion in their state Constitutions, and some even have trigger laws that would automatically ban abortion if or when Roe is reversed.
With Dobbs, the court could also strike down the precedent of Planned Parenthood v. Casey, a 1992 decision that upheld Roe and determined that restrictions on abortion cannot pose an undue burden on someone's ability to get an abortion. But while the Planned Parenthood case affirmed legal abortion, it also helped make more abortion laws and Supreme Court cases like this possible, due to the ambiguity of the "undue burden" standard.
The justices could uphold Roe in words to present the image of respect for precedent and still decimate abortion access — a growing trend, especially in the past 10 years, when more than a third of the roughly 1,200 state restrictions on abortion were enacted. About 90 percent of US counties don't have an abortion provider. Even if the Supreme Court strikes down Mississippi's 15-week ban, as it ruled last year in June Medical Services v. Russo, which centered on clinic shutdown laws in Louisiana, the court may state that it's willing to hear future cases on other abortion restrictions.
In a best-case scenario, the court could strike down this 15-week abortion ban and all other abortion bans and reaffirm the Planned Parenthood v. Casey standard that restrictions on abortion can't pose an undue burden to access. But based on the news that has emerged from the case so far, it seems likely that the court will at least uphold Mississippi's ban.
How Could Dobbs Affect Abortion Access in the US?
Depending on how the court rules, we could see even more abortion bans and restrictions pass — and there are already a lot. In May, Texas Gov. Greg Abbott signed into law a bill that not only bans abortion at six weeks but also gives any US citizen the authority to sue someone who has an abortion or provided or helped someone get the abortion. In April, states signed into law 28 abortion restrictions in one week, quickly putting 2021 on track to be one of the most dangerous years for abortion rights yet.
Over the last year, the COVID-19 pandemic has also greatly impacted abortion access, at one point giving states broad leeway to ban abortion by identifying it as "nonessential health care." Additionally, the pandemic created many travel, cost, and safety barriers, as COVID cases and deaths soared, and so did unemployment and loss of health coverage. As a result, more and more people started using abortion medications, which can be taken safely at home, but many states and the Trump administration swiftly worked to restrict this form of abortion care. The Dobbs case could further empower restrictions on medication abortion and abortion care broadly by dismantling the protections created by Roe v. Wade. This court has already railed against medication abortion access.
The health, economic, and safety impacts of restricted abortion access can be incredibly harmful. Research has shown being unable to get an abortion can push someone into poverty, worsen their physical and mental health, or make them more likely to stay in an abusive relationship. We also know that states with more restrictions on abortion tend to have higher maternal death rates and that women of color are more likely to die from pregnancy or birth-related complications.
How Can We Support Safe Abortion Access, No Matter What the Court Rules?
Dobbs v. Jackson Women's Health is an incredibly high-stakes case, but it's important to remember that abortion rights have always been under threat, and abortion providers and advocates have always helped people get the care they seek, regardless.
If the worst-case scenarios for abortion access become a reality, that doesn't mean the fight is over. Elections — especially on the state and local level — have always been highly consequential for reproductive rights and will be all the more so if Roe is overturned, or if states are given free rein to enact more abortion bans like Mississippi's. That means each of us will have to double down and do our research on our state legislators and ensure we're voting and organizing for local representatives who will reject abortion bans and work to expand abortion access. Thankfully, groups like #VOTEPROCHOICE and local NARAL and Planned Parenthood chapters make this a lot easier with their comprehensive voter guides.
And of course, when it comes to the federal level, it's crucial to listen to reproductive rights and justice advocates and not the antiabortion politicians who have spent their careers vowing to end legal abortion, only to gaslight us and claim their selections for judges and justices will uphold the precedent of Roe.
While elections are important, there's no substitute for direct, community-level support. Local abortion funds offer direct financial support for the costs of the abortion and associated costs for transportation, lodging, child care, and more and have always been vitally important as federal and many states' laws prohibit public funding of abortion care. Abortion funds have existed and connected people to the care they need since before abortion was legal. Finding, donating to, and volunteering with your local abortion fund, or a fund in a region with significant barriers to care, can help facilitate safe abortion access, no matter what the Supreme Court rules.
As with all high-profile, abortion-related Supreme Court cases or draconian state abortion laws, we need to stay vigilant and aware of the threat Dobbs v. Jackson Women's Health poses. But it's also important to stay motivated and energized to keep the fight going beyond any single ruling or election and do the work in our communities to ensure each of us can get the care we need, no matter the political attacks we face.