Bench Memos

Law & the Courts

Supreme Court Grants Review in Mississippi Abortion Case

I’m very glad to see that the Supreme Court has (at last!) granted review of the state of Mississippi’s certiorari petition in Dobbs v. Jackson Women’s Health Organization. The petition concerns Mississippi’s Gestational Age Act, enacted in 2018, which allows abortions after 15 weeks of gestational age only in medical emergencies or in instances of severe fetal abnormality.

As I have pointed out, laws like Mississippi’s have broad public support. According to an NPR/PBS NewsHour/Marist poll from 2019, only 29% of Americans think that abortion should generally be allowed after the first three months of pregnancy (13 or so weeks). That broad public support is likely to grow when Americans learn that—according to this Center for Reproductive Rights database—France, Italy, Germany, Spain, Norway, Switzerland, and lots of other European countries have a gestational limit of 14 weeks or earlier.

The Court’s order (page 2) specifies that its grant of certiorari is “limited to Question 1 presented by the petition”—namely, “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” At first I thought that limitation seemed a bit odd, as the Court already ruled in Gonzales v. Carhart (2007) that the federal partial-birth abortion law could operate pre-viability. But the Court’s ruling in that case expressly “assume[d]” that a state may not “prohibit” abortion “[b]efore viability,” and its decision relied on the fact that the law “does not prohibit” the “standard D&E,” the “usual abortion method” for second-trimester abortions.

I don’t find it at all concerning that the Court didn’t grant on Question 2 of the petition. That question asks whether the validity of a pre-viability law “should be analyzed under [Planned Parenthood v.] Casey’s ‘undue burden’ standard or [Whole Woman’s Health v.] Hellerstedt’s balancing of benefits and burdens.” Mississippi, I’ll note, submitted its petition two weeks before the Court’s ruling last June in June Medical Services v. Russo, so it obviously could not have anticipated that the Chief Justice’s decisive concurring opinion in that case would reject the premise of its question—i.e., that Hellerstedt should be read to have deviated from Casey.

By not granting on Question 2, the Court certainly did not foreclose itself from determining what standard of review applies to Mississippi’s law. Indeed, it’s difficult to see how the Court could decide the case without addressing that threshold issue.

The Court also declined to grant on Question 3, which asks “whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.” I had hoped that June Medical would cut back on third-party standing, but I’m happy to have the substantive issue in Dobbs teed up directly.

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