Abortion and the High Court: An Explainer

Surprise ensued on December 1 when the majority of Supreme Court justices indicated they are willing to overturn Roe v. Wade. That 1973 decision determined a “fundamental right” to elective abortion throughout the 50 states.

The telling moment occurred during oral arguments concerning Thomas E. Dobbs v. Jackson Women’s Health Organization et al. when Kavanaugh, the wild card and swing vote, signaled that he thinks Roe does not merit respect for precedent.

The final ruling on Dobbs will be this summer, and oral arguments are no guarantee of how justices will vote. But the evidence suggests that Roe will be overturned, 48 years after the fact. This is historically momentous.

My goal here is to explain the nexus of reasoning used in Dobbs’ four most important precedents. This background is necessary for understanding the current deliberations of the Supreme Court of the United States (SCOTUS).

This exercise has all the excitement of a dramatic football game. We have: a ball picked up from a fumble, then a substantial run, then two penalties for offensive holding, and finally an intercepted pass (anticipated).

What is Dobbs, exactly?

The case concerns the state of Mississippi’s 2018 Gestational Age Act prohibiting elective abortions after the fifteenth week of pregnancy. Thomas Dobbs is the relevant employee of the Mississippi Department of Health. The fifteenth week is significant due to research showing that from this point the fetus feels pain. S/he responds to a needle by recoiling and by increased circulation of stress hormones.

However, the issue in Dobbs is not fetal pain as grounding a right not-to-be-terminated. It is whether the fifty states have the right to make laws in their own jurisdictions banning abortion pre-viability. Viability is whenever a fetus can survive separately from its mother, though not without a simulated womb. Current incubation technology places this between 21-26 weeks (<10% increasing to >90% survival rate). Since week 15 predates this by 6+ weeks, Mississippi has been charged with illicitly banning abortion pre-viability.

Yet fetal viability itself is not the most relevant question either. For the viability standard was used in Roe and Planned Parenthood v. Casey (1992) as a means or tool. It was an attempt to balance the states’ “interest in life or potential life” against the woman’s “fundamental right to terminate her pregnancy.”

At the 1973 Year Line

Roe is arguably SCOTUS’ running of the ball, which it picked up after a fumble. The fumble was an earlier confused account of privacy, which we will see in replay momentarily.

In Roe, the majority of the Court holds:

1. Every woman has a right to abortion, which is “fundamental” because it is rooted in the Bill of Rights, and which therefore outweighs Texas’ law restricting abortion to cases where it saves the life of the mother. (paragraph 83)
2. The fifty states can assert an interest in protecting human life, even from conception, which according to the opinion of some (but not Texas) is merely “potential life.”  So the woman’s right is “not absolute.” (paragraphs 75-8)

This dual affirmation sets “Roe” on a collision course.  

Roe–SCOTUS attempts to avoid crashing into the defensive line of the states by dividing up the timeline of pregnancy. It assigns women an absolute right to abortion in the first trimester and a near-absolute right in the second. In the third trimester (viability, in 1973) the state’s interest in fetal life is “compelling” enough to justify it in restricting or banning abortion.

However, there is a basic problem with this route. Gestational age does not have anything to do with the principles that the case’s reasoning relies upon. So it does not address the tension between (1) and (2). Instead, it generates a contradiction. If the woman’s right is fundamental but not absolute, then how can it be absolute during the first trimester? If the state can assert a legitimate interest in the unborn from conception, this is simply incompatible with prohibiting it from legislating in that interest pre-viability.

Why does this conflict arise in 1973? Because Roe’s claim that a woman has this fundamental right is new. States had been passing laws concerning abortion for over 150 years.  Now Roe claims to find a right that overrules nearly all state restrictions pre-viability.

Replay: a Fumble at the 1965 Line

As Roe-SCOTUS attempts to run the ball from the 1973 line it is loudly booed by a substantial portion of the stadium, even though Team SCOTUS is playing a home game. The fans are shouting that Roe-SCOTUS has cheated. A review of the tapes is made.  

The replay finds that Roe-SCOTUS’ course was set by Griswold-SCOTUS, who fumbled the ball that Roe–SCOTUS is running.  

Roe asserts that the abortion right is “discoverable” in the “penumbral right to personal or marital privacy” as explained by Griswold v. Connecticut (1965) (paragraph 33). This is a reference to the Penumbral Principle^TM: 

“Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” (Griswold, paragraph 14)

What? This looks like a mumbo-jumbo fumble.

Allegedly the amendments in the Bill of Rights cast shadows (penumbras), and at least some of these shadows are zones of privacy. Which amendment(s), was left unclear: the first, third, fourth, fifth, ninth, or fourteenth (paragraphs 9-14). Obviously, the most important thing about Griswold is not its specific subject matter (contraception), but this Penumbral Principle^™.

If Roe had used Griswold’s full chain of reasoning about contraception for the case of abortion, it would have said: the abortion right is a penumbra emanating from a penumbra [right to privacy] emanating from a penumbra [right to free association] emanating from a basic political right [right to free assembly, Amendment 1].

But Roe streamlines Griswold’s penumbras, assigning privacy to the Fourteenth Amendment’s “liberty” (“… nor shall any State deprive any person of life, liberty, or property, without due process of law”). So:

The abortion right is a penumbra emanating from a penumbra [right to privacy] emanating from a basic political right [liberty].

This Penumbral Principle^™ has been ridiculed as a collection of vague metaphors lacking ethical-legal cogency and reality. If enumerated rights “create” shadow-zones, how can the zones double-back and give their creators “substance?” If abortion is a derivative shadow twice removed from its base, how can it be fundamental?

The new penumbral right to privacy has also been criticized as unnecessary. Griswold said it was concerned about the privacy of “the marital bedroom.” But this could have been protected, and the Connecticut law struck down, by appeal to private property—an uncontroversial and already well-established right.

The 1973-2021 Year Line

We’re back in play, and Roe-SCOTUS is running the ball it picked up from Griswold–SCOTUS. It is on a collision course because of its conflicting affirmations.

Various attempts at a tackle are made by the defense, and in 1989 and 1992 Roe-SCOTUS receives two penalties for offensive holding. (In this foul, an offensive player holds a defensive player back from participating in play.)  

Webster v. Reproductive Health Services (1989) rules that the federal government cannot prevent the state of Missouri from asserting its interest in unborn life in the first two trimesters when using its own tax dollars. Planned Parenthood v. Casey allows Pennsylvania’s legislation conditioning abortion access in the first two trimesters (informed consent, parental notification for a minor, etc.).

Now at the 1992 line, Casey-SCOTUS has the ball. Coach O’Connor acknowledges that Roe was on a collision course: “Roe began the contradiction by using the trimester framework to forbid any regulation of abortion designed to advance that [state] interest before viability.”

So Casey-SCOTUS alters its route, but only slightly. There is a fundamental federal right to abortion pre-viability. But the states’ interest in life is “profound, from conception.” Conclusion: states are allowed to restrict, in some way, abortion access from conception onward.  Roe’s absolute right in the first trimester and near-absolute right in the second are gone.

However, this is again a collision course. We have a “profound” interest pitted against a “fundamental” right. How are these to be reconciled in cases of conflict?

To avoid crashing into the states’ defensive line, coaches O’Connor, Souter, and Kennedy sketch the Undue Burden^™ route for Casey–SCOTUS. The states can restrict abortion pre-viability, so long as these limitations do not “place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”

Naturally, there is much confusion on the field and in the stands. Everyone wonders what constitutes a “substantial” obstacle. To the disappointment of philosophers everywhere, however, Casey does not enumerate criteria for substantiality.

One thing is clear, though. A total ban on getting an abortion must be a “substantial obstacle.”

And this brings us to the 2021 year line. Dobbs directly challenges Casey’s revision of Roe by banning abortions before viability.  

As Casey-SCOTUS attempts to pass the ball downfield, Team States runs to intercept and regain possession of the ball.

Staff Photo Courtesy of Olivia Colombo