Photos: Center For Reproductive Rights\YouTube
On Wednesday, the U.S. Supreme Court will take on the latest abortion case: Dobbs v. Jackson Women’s Health Organization.
This week is the week.
While it’s hard to believe that December 1st is this Wednesday, it’s actually here. This is a day that’s going to be one of the most important days in the past 50 years – perhaps one of the most important days in the history of the Supreme Court.
While there has been a lot of attention over the past few weeks on Texas SB8, this really has been shadow docket stuff. The reason we don’t have a decision a month after the emergency arguments on two SB8 cases is because the Court has much more of an appetite for Dobbs, which they get to satisfy this week. SB8 can wait because, in many ways, it has been and remains far less relevant in the national judicial conversation. It is, as I have written earlier, the canary in the coalmine on the abortion issue.
How we arrived where we are today takes us back almost six years. Before becoming president, Donald Trump promised a Supreme Court that would be essentially ideologically bound to end abortion. It will take months to see whether he succeeded, but with the addition of Justices Barrett, Kavanaugh, and Gorsuch, he installed the 6-3 conservative majority his supporters demanded to get the job done.
It’s hard to believe that Roe v. Wade is a half-century old, but it is. Today’s Supreme Court will recognize that previous incarnations of the Court have acknowleged that the right to an abortion is protected by the Constitution, specifically the Fourteenth Amendment, protects the fundamental right to abortion, including the core principle that states cannot ban abortion prior to viability.
Adriana Gonzalez, a Florida lawyer, affirms the Fourteenth Amendment argument:
“The Fourteenth Amendment guarantees liberty and equality, which also needs to include the right to choose to have an abortion. Any state law that runs counter to this guarantee, including laws that permit pre-viability abortion, violates the Constitution.”
From a practical perspective, it’s easy to see why this case was interesting to the Court where many others weren’t. Part of what the Mississippi officials argue as petitioners in this case is that a lot has changed regarding the need for abortion in the 50 years since Roe. In their briefs, they cite huge advances in society, including better and more widely available birth control, as well as laws promoting gender equality, that (they argue) make abortion less necessary for far more people.
Yet Mississippi is the only state with no equal pay laws, and has no laws mandating workplace accommodations for pregnancy or paid family leave. Mississippi is a beautiful state but the metrics clearly show that as regards future outcomes for women where abortion is restricted, this is one of the most vulnerable states in the nation.
Part of the impetus behind Roe and Casey was the notion that women should be empowered to live equal lives in a practical sense. So this is ultimately what’s at stake this week in Dobbs. If we don’t want government to be involved in our most deeply personal and intimate choices with our bodies, then all of these pre-viability “heartbeat” abortion laws need to be held to be unconstitutional through Dobbs, which would affirm Roe and Casey. Chief Justice Roberts himself affirmed in a 2020 decision that Roe should be respected as precedent and Casey had reaffirmed its judicial principle.
But that’s a pretty ambitious proposition, given that many political and Court pundits already see Dobbs as a fait accompli. Ultimately, there really is nothing to be gained by underestimating the judicial strength of this version of the Supreme Court. Anyone who expects anything less than brilliant oral arguments on Wednesday that will form an important part of our judicial history isn’t paying close enough attention. While it’s a bit trite to say what’s at stake this week is everything, if there have been more important oral argument days in the history of the Supreme Court than this Wednesday will be, we can surely count them on one hand.
Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor of Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in CBS News, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, and many other leading publications.
