Supreme Court Abortion Case Is Part of a Historic Shift

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Over the next year, you’re going to hear a lot about the Mississippi abortion case that the Supreme Court has agreed to hear. It’s called Dobbs v. Jackson Women’s Health Organization — and the key word at the center of the discussion is going to be “viability.” If the Supreme Court sides with the pro-life side, you can expect to see more state bans on early abortion like the one Texas Governor Greg Abbott just signed into law, which bars abortions after week six of pregnancy.

That’s because since the 1973 Roe v. Wade decision, the Supreme Court has held that there exists a fundamental constitutional right to terminate a pregnancy before the fetus would be viable — that is, able to survive outside the womb. Currently, medical consensus puts viability at 23 to 24 weeks gestation. The Mississippi law prohibits abortion after 15 weeks, long before viability. In taking the case, the Supreme Court said it would consider “whether all pre-viability prohibitions on elective abortions are unconstitutional.”

To understand the nature of the debate, we need to begin with a simple fact about Roe that is often forgotten: The ruling was a compromise. The Supreme Court did not say that a woman had an absolute right to choose whether and when to end her pregnancy. Nor did it permit states the unfettered capacity to limit abortion.

Instead, the decision offered an argument about when the mother’s interest in controlling her body and her pregnancy gave way to the state’s interest in protecting the potential life of the fetus. The answer was: the point of viability, “except when [abortion] is necessary to preserve the life or health of the mother.”

On the basis of this analysis, the Roe decision created a three-stage analysis of pregnancy. In the first trimester, through 13 weeks, the state could not place any limitations on abortion rights. In the second trimester, a period ending roughly at viability as it was then computed, the state could only impose limits designed to protect the health of the mother. In the final trimester — in other words, the period after viability — the state could ban abortion.

The Roe compromise had much in common with other well-known compromises struck around the same time by the Burger court. But in the last decade or so, those compromises from half a century ago have been breaking down.

In Buckley v. Valeo (1976), the court compromised by holding that campaign finance laws could constitutionally limit contributions but not candidate expenditures. That holding has since been eviscerated by a series of Supreme Court decisions, culminating in Citizens United (2010). 

In Abood v. Detroit Board of Education (1977), the court compromised by holding that nonunion members in a closed shop could be forced to pay money in lieu of union dues, but could not be compelled to pay that part of the dues that would have gone to the union’s political expression. The Supreme Court reversed Abood in Janus v. AFSCME (2018) basing its reasoning partly on the incoherence of the original compromise.

The viability principle survived the chief reconsideration of Roe, Casey v. Planned Parenthood (1992). The controlling opinion, co-authored by Justices Sandra Day O’Connor, Anthony Kennedy and David Souter, got rid of the trimester framework but preserved what it said was the essential holding of Roe, namely “that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”

Of course, the Casey decision was also a compromise, one in which the justices emphasized not the correctness of the Roe holding but the importance of respecting precedent. In explaining why it was maintaining the viability line, the controlling opinion said pragmatically that “there is no line other than viability which is more workable.”

The difficulty with the viability line was always that it could not squarely be located in either the text of the Constitution or the history of the right to privacy that the Supreme Court found in the document. In practice, Blackmun deployed the viability principle in an attempt to craft a compromise. And like most compromises, it satisfied neither side.

In the Dobbs case, the pro-lifers will argue that viability was never a sensible line to begin with, partly because it is contingent on the state of medical care. Their goal will be to convince the Supreme Court to hold that viability doesn’t belong in the abortion rights analysis anywhere.

The pro-choice community will find itself insisting, correctly, that viability has been the line since 1973 and that the precedent should be respected. That’s not a great position to be in. An argument from precedent is almost by definition not an argument for principle. It would be nice to be able to provide a principled, logical defense for a fundamental constitutional right when that right is in jeopardy.

The upshot is that Supreme Court decisions based on compromise are especially vulnerable to being repudiated when circumstances have changed. In today’s polarized climate, constitutional compromises are few and far between.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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