Bench Memos

Law & the Courts

Supreme Court Is Still Sitting on Important Certiorari Petition in Abortion Case

Back in early November, I explained why I believe that it is unlikely that there will ever be a more opportune vehicle for reconsidering Roe v. Wade and Planned Parenthood v. Casey than the state of Mississippi’s certiorari petition in Dobbs v. Jackson Women’s Health Organization.

In brief: (1) There ought now to be at least six justices who recognize the fundamental illegitimacy of Roe and Casey. (2) The Court has an opportunity to overrule (or scale back) Roe and Casey in a way that is durable. (3) Acting now will afford plenty of time to the democratic processes in the states to address, and provisionally resolve, abortion policy. (4) Laws like Mississippi’s ban on abortions after 15 weeks of gestational age (with exceptions for medical emergencies and instances of severe fetal abnormality) have broad public support and—for those who think it meaningful to look to the laws of foreign countries—are similar to the gestational limit of 14 weeks or earlier that France, Italy, Germany, Spain, Norway, Switzerland, and lots of other European countries have.

The petition was initially distributed for decision at the Court’s conference in late September and has been repeatedly rescheduled since then. In its order today, the Court again took no action on the petition.

I hope that I am proved wrong, but it is difficult to be optimistic about this long delay. One dispiriting possibility is that the petition was unable to garner the four votes needed for a grant of certiorari and that one or more justices are in the process of writing a dissent from the Court’s failure to grant.

If the Court ends up failing to grant certiorari, there will be ample cause for deep disappointment with any conservative justices who failed to provide the needed votes.

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