Unpacking Tomorrow’s Big Abortion Case: Fetal Viability, Undue Burden, and Roe v. Wade

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Tomorrow, the Supreme Court, with a new 6-3 conservative majority, will hear the case of Dobbs v. Jackson Women’s Health. At issue is Mississippi’s ban on all abortions performed after 15 weeks, a law that moves the “goalposts” for what constitutes legal abortion earlier by around nine weeks. The very fact that the case is being heard at all has reproductive rights advocates on high alert. At stake is the principle that lies at the very heart of the right to abortion under Roe v. Wade: fetal viability.

Under Roe and cases affirming it over the past near 50 years, the Supreme Court has held that there is a constitutional right to abortion before the point of fetal viability, which is commonly understood to be at 23-24 weeks even with current medical advances. What this means in practice is that, under current jurisprudence, the individual states cannot impose restrictions that impose an “undue burden” which is defined, in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey decided back in 1992, as follows:

“An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

Conservatives on the Court may very well agree to strike “fetal viability” as the point at which the state may not interfere with undue burdens upon the right to an abortion. The question then becomes, what do they replace it with? A few possibilities emerge:

Strike Down Roe Entirely

In the most extreme case, likely favored presently by at least 2-3 justices, they will simply hold that Roe and its progeny like Casey were wrongly decided, and that the Constitution (and by extension the federal courts) has no say in whether states may place any restrictions or even bans on abortions. That is the dream of much of the religious right—and it is what the State of Mississippi is requesting. If this is the result of the case, it would immediately trigger abortion bans across much of America. According to the Guttmacher Institute, 21 states currently have bans on the books waiting to become enforceable law should Roe v. Wade be struck down, and five others are likely to follow suit with new bans:

Eliminate Fetal Viability and the Undue Burden as tests

The notion of fetal viability as a meaningful test for when an abortion can or cannot be performed has never stood on particularly solid ethical or legal grounds. In some ways it is arbitrary, but then again so is almost any other point you might pick during the pregnancy. Medical technology is likely to push that point earlier and earlier into the pregnancy, turning courts into arbiters of what science can or cannot achieve.

Moreover, the “undue burden” test has failed to stop the closure of abortion clinics, driven by regulatory impediments and barriers erected aggressively across the South, making access far more of a burden than anything. For example, there is only one abortion provider for the entire state of Mississippi, and it already doesn’t perform abortions past the 16-week mark. This renders Mississippi’s proposed 15-week ban almost immaterial—except to those desperate women who might need it most.

Any change in the rules over when states may or may not impose restrictions on abortion will inevitably set off further races to the bottom and tests of any newly announced legal rubric. The Court likely understands this and may be willing to let that process play out among the state legislatures and the voters and only revisit the fundamental right to an abortion when the dust settles.

Leave Roe Intact

Of all of the outcomes, this is currently the least likely, not only because it seems implausible that four justices would have voted to take the case only to affirm it, but also because many justices have expressed deep doubts over Roe, seeing it as harmful judicial overreach. Such an outcome would also set off howls of protests among conservatives who have twisted the Court appointment process into dangerous knots in order to secure a solid majority.

But this is also a case of “be careful what you wish for.” The outright striking down of Roe, or even turning a blind eye to outrageous restrictions and laws like the vigilante-bounty system passed recently in Texas, could become a rallying cry for the left, especially in key swing states like Georgia, Arizona, Michigan and Wisconsin which all have trigger laws for abortion bans in place. The decision by SCOTUS will land at the start of the summer of 2022, opening the possibility of a summer of protest and mobilization by women voters. The timing may matter immensely as we go into the important midterm elections where control of the Senate (and thus future appointments to the Court) is up for grabs.

Finally, it’s important to understand that it isn’t just reproductive rights at issue, but the whole notion of equality for women in America. Restrictions on abortion rights and access disproportionately impact underprivileged women who do not have the means to travel to other states to obtain an abortion or otherwise must pay out of pocket in the thousands to perform one at a far-off clinic in-state. When the Supreme Court hands down its decision, it is these women who will suffer most from any limitations on Roe or if it is struck down entirely. As the late Justice Ginsberg wrote, “[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”