What are the key differences between these two cases?
Mississippi and Texas have set a time limit for women who want to get legal abortions. Texas set a limit of six weeks for women to recognize they are pregnant and make a decision about what to do. This is a very short window of time to make an important decision.
Texas’ statute contains an additional detail: A procedural component that says “We’re not going to enforce this state law in any way that has been done before.” You would expect that the police or government official investigating and enforcing a law will investigate it. Texas has decided to outsource enforcement in a bold move. Any citizen in America has the right of sue anyone in Texas that has had an abortion or attempted to have one.
Outsourcing enforcement to “civilians” means that the federal courts can keep challenges to the law’s constitution out of their jurisdiction. Constitutional challenges require government enforcement. It is a way to say to federal courts, “Keep those cases off your hands.” They should be decided by friendlier state courts.
Mississippi also has a limit on the time that abortions can be performed, but it only allows legal abortions to occur after a 15-week period. This is a longer period that Texas has, with 92% of Mississippi’s abortions occurring within the first 13 days.
But the main point is that both the 15-week (Mississippi), but also the six-week (Texas) cases are invalid under Roe v. Wade. Roe v. Wade was a 1973 case which held that a woman may terminate a pregnancy at any time prior to viability. In 1973 viability (the point at which a fetus is capable of living outside the mother’s body) was 28 weeks. Modern medical techniques have made viability possible for many weeks. These new laws, which are both unconstitutional, are supported by every state, Mississippi included. The prize is not the gestational limit as such, but legal abortion. Mississippi has requested that the court uphold the 15-week gestational limit and also look at the entire abortion jurisprudence in order to completely discredit Roe. The proposal was to use the time limit as an opportunity for the country to rid itself of the horrors of abortion which has plagued it since 1973. Mississippi has presented that invitation directly to court.
What argument can you use to overturn the Mississippi law
The reason that Roe might not be overruled by justices is the well-known doctrine of stare decisis. It says that the Supreme Court should abide to precedent and follow the decisions of previous cases that have presented similar issues. Planned Parenthood of Southeastern Pennsylvania in Casey (1992) is the case in which the court was asked whether Roe should be struck down in the context of Pennyslvania’s restrictions on abortion. Casey’s court repeatedly said that it did not overrule Roe’s central principle that women may have abortion at any stage of life.
There are exceptions, however, to the rule that stare decisis. This includes situations where the rule being challenged is no longer applicable. The Court of Appeals rejected Casey’s assertion in relation to abortion regulation. It stated that the rule was not unworkable and the rule is now part people’s constitutional rights. According to the Casey decision, “A whole generation has reached adulthood” knowing that they can trust the Constitution for abortion in the event of contraception failure.
However, the court’s composition has changed dramatically since Casey. Three of the three current members of Court now defend Roe/Casey holdings. They are part of a person’s right to exercise their vested liberty interest and control the deeply personal decision about whether or no child is born. This is the area of action. Chief Justice Roberts will be able convince right-leaning judges (and himself!) to support the double-layered precedents of Roe and Casey.
How could Dobbs be allowed to abrogate Roe’s constitutional rights?
They can crush Roe by telling the court what it said in Lawrence (v. Texas) (2003). This case overturned Bowers (1986), making same-sex activity legal. Bowers is wrong today. I disagree.
The justices don’t seem to want to quote particularly from the sodomy cases. This is because Lawrence made something that was unconstitutional and constitutional. But, I can see them saying, “The way you thought in the 1970s wasn’t right, so we are rethinking.”
They could argue that Roe made a mistake by stating that a foetus is not an individual under the Constitution. They could even say that they know more about fetuses than we do now. We know when they feel pain and can treat them. However, none of this knowledge existed in 1973. It would be shocking. If they state that a human being is a fetus, that will end Roe nationwide. Politically, that seems a bit bold.
Is there an alternative to Roe being overturned?
It is important to remember that Roe was significantly reduced in 1992’s case of Planned Parenthood of Southeastern Pennsylvania. Casey stated that you can regulate abortion before it is viable, but not ban it. An ultrasound is required if you are planning to have an eight-week abortion. It is necessary to return home and reflect on the matter for at least 24 hours. When performing an ultrasound, doctors must read the scripts prepared by the legislature and identify all anatomical features. These are the kinds of restrictions and restrictions Casey made Roe.
Dobbs may say that viability was “sort of randomly selected” in Roe. However, they have the power to alter it because we created viability. They must define the new time period in order to not completely overturn Roe (and keep in mind that not all the votes are available to save Roe). They cannot simply state, “We have abolished viability, but Roe continues,” because this would completely reverse Roe. They will need to establish a time limit for legal abortion. Or, the state can say that it is one week. Then Roe will be overruled. The court could affirm the Mississippi legislation. Viability would now be substituted by 15 weeks. Next June will be the final decision.
What happens if the Texas citizen-lawsuit enforcement mechanism in Texas is upheld?
This is a crucial question! Yes, this could be applied to gun control. Firearms Policy Coalition filed an amicus note warning that this new citizen enforcement mechanism does not only apply to abortion. Any citizen could sue any person in a state that engages in illegal but preferred behavior such as open-carrying guns. While the Texas statute targets abortion, it’s based on a general scheme that can be applied to all things. Many people are waiting for the court to decide on this issue before next summer. I believe the Texas enforcement system is so offensive and disruptive to our constitutional law system that it will be rejected by the court. Particularly since some justices are unsure about its legitimacy. (Justice Amy Coney Barrett, for instance, reminded a lecturer in September that the court is not composed of “bunchs of political hackers.”
There are at most 10 states that already have similar laws in place if the Texas law is approved. If the Supreme Court holds Mississippi’s statute up, around 22 states will have what they call gestational-age limits. They are also known as trigger laws, because they allow for abortion to be legalized in the state if Roe V. Wade is not overturned.
However, 14 other states have laws that trigger abortion legalization if Roe’s case is overturned.
Keep informed
Sanger suggests that listening to C-SPAN’s live audio is the best way for you to follow oral arguments in Dobbs. “They put up the name of the attorney or justice speaking,” she said. “This is very helpful because there are so much interruptions that it would otherwise be quite difficult to follow.”
