The Supreme Court agreed to hear arguments on what one news outlet called a "potentially blockbuster abortion case."*1 The key issue in this case, according to SCOTUSBlog,*2 is "Whether all pre-viability prohibitions on elective abortions are unconstitutional."
This grows out of a Louisiana case decided in 2020 where the US Supreme Court struck down a law requiring doctors performing abortions to have admitting privileges at a hospital. In a 5-4 ruling, the Court said this is an unconstitutional restriction on pre-viability abortions. Typically, objections from pro-choice advocates is that few abortion providers have admitting privileges and, in some places, they are a considerable distance apart.
In the Mississippi case, the State has banned abortions after 15 weeks, the second week of the second trimester. Mississippi points out that a woman can have an abortion prior to the 15 week mark without restriction, where in the Louisiana case if a woman could not find a doctor with admitting privileges she could not have an abortion at any time. The State is arguing that prior cases never said every pre-viability restriction is unconstitutional.*3
The Supreme Court could take a narrow position and say that some pre-viability restrictions are permitted and provide guidelines on how to review restrictions like Mississippi's. This is absolutely consistent with the majority opinion in Roe v. Wade, which wrote:
We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman... the "compelling" point, in light of present medical knowledge, is at approximately the end of the first trimester.*4
Directly related to the question of whether regulation pre-viability is Constitutional is the question of when does pre-viability end and viability begin. The rules relating to State regulation change significantly because when the fetus is viable, the Majority in Roe v. Wade held:
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb.
So pre-viability, primarily in the second trimester, States can act to protect the life and health of the mother. When a fetus reaches viability, States can act to protect both the life and health of the mother and the life and health of the child.
The decision in Roe v. Wade cited medical history and medical information in its rationale and in setting up the rules for the three trimesters and in determining the "compelling point" for viability is the start of the 3rd Trimester, or week 25 of a pregnancy. Today's Court could take a small step and point out that, due to advances in medical science since 1973, viability is earlier than week 25 of a pregnancy, a.k.a. the start of the 3rd Trimester. Fact: A premature child was born at week 21 and survived.*5
Therefore the Court in the Mississippi case could stay within the confines of Roe v. Wade, citing the Roe Court's reliance on "present medical knowledge" of 1973. The Court could say that, relying on "present medical knowledge" of 2022, medical science has advanced in the almost 50 years since Roe v. Wade was decided and update the rules set forth in Roe v. Wade to reflect current technology and capability.
Or the Court could go much further and take on an issue the Court in Roe v. Wade chose not to address. In Roe, the Majority wrote:
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
Today's Court could argue that after the decision on Roe v. Wade was handed down, "the respective disciplines" have arrived at a consensus:
In the wake of the 1976 Karen Ann Quinlan case, state legislatures in the United States moved to accept brain death as an acceptable indication of death. In 1981, a Presidential Commission issued a landmark report entitled Defining Death: Medical, Legal, and Ethical Issues in the Determination of Death... This report formed the basis for the Uniform Determination of Death Act, since enacted in thirty-nine states.
Thus, a Presidential Commission and 39 States have reached the same conclusion, which would seem to represent a consensus. By saying when life is absent, these laws, passed after the Roe v. Wade decision, are also defining when life exists. If the heart is not beating a person is dead. Therefore if the heart is beating, a person is alive - unless they are brain dead. If there is no brain activity then a person is dead, but that clearly means if there is brain activity a person is alive.
Why is that relevant to abortion? A child's heartbeat can be detected 3 or 4 weeks after conception.*7 Brain activity can be detected as early as 5 to 6 weeks after conception.*8
Using long standing Statutory definitions, developed with input from medical science, we can now define when human life exists.
If the Supreme Court wanted to do something dramatic, it could cite the definition of when life ends/exists coupled with the medical scientific facts of when a heartbeat is present and when brain activity begins and establish a new "compelling point" for when "the State's important and legitimate interest in potential life" begins.
The Court could protect the right of a woman to choose medical treatment by citing the fact that medical science makes it possible for women to much more easily detect pregnancy early and take action, if she so chooses, for example with the so-called morning after pill or other drugs sometimes referred to as abortifacients.
Such a decision by the Court would not be based on moral or religious grounds but rather a consensus developed by a Blue Ribbon Presidential Commission, which resulted in long standing statutes, as well as input from medical science, leaving the abortion advocates as the ones who are "denying science" if they criticize the decision.
That said, I don't think that will happen, as much as I wish it would. I don't expect the Court to take on the definition of when life begins because that is not the central issue of the case before them. The issue before them centers on whether States can regulate abortion "pre-viability."
I do think the Court will:
- Make clear States can regulate abortion pre-viability, as was clearly permitted in Roe v. Wade.
- Provide some guidance for lower courts to determine what regulation is acceptable and what isn't
- And I think they will take on the issue of when "pre-viability" ends and "viability" begins because that point is relevant to the issue at hand - i.e. when do the restrictions imposed on regulations during pre-viability exist.
If the court does take on the subject of when "viability" starts using medical science as a basis, then I think that opens the door for another State to challenge the definition of the "compelling point" in a future case.
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*1 https://www.washingtonexaminer.com/news/supreme-court-blockbuster-abortion
*2 https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/
*3 https://www.scotusblog.com/2021/05/court-to-weigh-in-on-mississippi-abortion-ban-intended-to-challenge-roe-v-wade/
Much of the discussion of the Louisiana and Mississippi cases is based on coverage in the SCOTUSBlog cited above.
*4 Roe v Wade found at https://supreme.justia.com/cases/federal/us/410/113/#tab-opinion-1950137
*5 https://tinyurl.com/6tnc893d
*6 The quote above is taken from: https://en.wikipedia.org/wiki/Brain_death
The report itself can be found at: https://scholarworks.iupui.edu/handle/1805/707
The Uniform Determination of Death Act can be found at: http://pntb.org/wordpress/wp-content/uploads/Uniform-Determination-of-Death-1980_5c.pdf
*7 https://tinyurl.com/4rcewybz
*8 https://www.nytimes.com/2005/06/19/books/chapters/the-ethical-brain.html
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