Opinion | How the Supreme Court Could Slowly Sabotage Roe v. Wade
A major confrontation on the abortion battlefield looms this fall, when the Supreme Court is expected to hear arguments on whether Mississippi can ban abortion after 15 weeks. That’s roughly nine weeks before viability, the point at which states are now allowed to forbid abortion. To uphold Mississippi’s law, the court would have to eliminate its own viability rule or reverse Roe v. Wade altogether.
Given the composition of the court, there is a real chance the justices may overthrow Roe. But there is also the possibility that the court, for institutional or political reasons, may not yet want to upend that 1973 decision, which found the Constitution protects a woman’s right to have an abortion without undue government interference.
What then? A recent ruling by the United States Court of Appeals for the Fifth Circuit seems tailor made for a Supreme Court that wants to look as if it cares about precedent while shooting a hole through that right. The appellate court relied on a past Supreme Court ruling to give leeway to the Texas Legislature to restrict a certain abortion procedure even though there was uncertainty about the medical consequences of the stricture.
Texas is one of several states that functionally ban dilation and evacuation, the safest and most common abortion procedure used in the second trimester. In performing the procedure, a doctor dilates the cervix and then removes a fetus using forceps and possibly suction.
The Texas law at issue in the case, Whole Woman’s Health v. Paxton, prohibits what the Fifth Circuit called “live dismemberment with forceps,” requiring doctors to ensure that fetal death occurs before an evacuation takes place.
Texas argued that the additional procedures it requires to guarantee fetal death were safe and effective, especially the use of digoxin, a heart medication that can also stop a fetal heartbeat. The state also asserted that experimental methods, such as injecting potassium chloride directly into the fetal heart or cutting the umbilical cord, would not threaten patients.
Abortion rights supporters say these procedures are unreliable, untested, unsafe and often unavailable. They add that Texas has essentially criminalized what has been the go-to abortion technique in the second trimester — dilation and evacuation without the additional steps to cause fetal demise.
This law was teed up by abortion opponents to build on their last major Supreme Court victory, a 2007 decision that ended fights over the late-term procedure they called partial-birth abortion. From the mid-1990s to the early 2000s, Congress and 21 states outlawed that uncommon procedure, which some critics compared to infanticide. Notably, the law passed by Congress did not include an exception for the protection of a pregnant woman’s health — a flash point in the subsequent litigation.
In voting 5-4 to uphold the bans, the court noted that there was “documented medical disagreement” over whether they “would ever impose significant health risks on women.” But Justice Anthony Kennedy added in his majority opinion in the case, Gonzales v. Carhart, that the court “has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”
Abortion opponents got the message.
Led by the National Right to Life Committee, they argue that the Texas law is a sensible extension of the precedent set in Gonzales. Like the ban on the late-term abortions, the law focuses on a procedure primarily used in the second trimester and relies on the idea that lawmakers have freedom to maneuver when a matter is scientifically uncertain. In the Texas case, that’s whether there is a safe and reliable method of ensuring fetal demise before evacuation.
When Fifth Circuit upheld the Texas law, it was Gonzales v. Carhart all over again. Just as the Supreme Court did in Gonzales, the appellate court held that “medical uncertainty” about the use of digoxin and other techniques to cause fetal demise “does not foreclose the exercise of legislative power in the abortion context.”
The Fifth Circuit decision, should it end up before the Supreme Court, offers an escape hatch for justices who might think it is prudent to take their time dismantling abortion rights.
The court’s institutionalists, led by Chief Justice John Roberts, do not want to crush respect for the federal judiciary. Honoring precedent makes the justices look more like jurists than partisans. And politically, overruling Roe also presents unique challenges.
Most Americans pay no attention to much of what the Supreme Court does, but abortion is different. A decision reversing Roe could energize abortion rights supporters to vote in 2022 and 2024 and also advance the cause of court reform. All of that means that the court’s conservative majority might hesitate to get rid of Roe quickly, especially without paying lip service to precedent.
That is the genius of the Texas strategy. There seems to be no trade-off between relying on precedent and gradually eliminating abortion rights. The message of the Fifth Circuit decision was clear: The court’s conservatives can have it all.
Mary Ziegler, a professor at the Florida State University College of Law in Tallahassee, is the author of “Abortion and the Law in America: Roe v. Wade to the Present.”
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