Could the Supreme Court Overturn Roe v. Wade In Its Next Term?

On Monday, we received some encouraging news that the Supreme Court granted certiorari in Dobbs v. Jackson Women’s Health Organization. At the center of the case is the state of Mississippi’s 15-week abortion ban that passed in 2018.

The petition for a writ of certiorari was filed on June 15, 2020, with Justice Samuel Alito, and it takes four justices to grant certiorari. Oral arguments this fall will be limited to one question provided by the petitioners, who, in this case, is Thomas E. Dobbs, M.D., M.P.H., the State Health Officer for the Mississippi Department of Health. The Mississippi Attorney General’s office represents Dobbs. 

The question that the Supreme Court will consider is whether all pre-viability prohibitions on elective abortions are unconstitutional. 

In their petition, the state of Mississippi notes that the Supreme Court recognized in Gonzales v. Carhart, a 2007 decision by the Supreme Court that upheld the Partial-Birth Abortion Ban of 2003, that an unborn child “is a living organism while within the womb, whether or not it is viable outside the womb,” and, as a result, is entitled to “respect for the dignity of (its) human life.” 

The petition then aims Roe v. Wade. They write, “Conversely, Roe‘s viability line is arbitrary, constantly moves as medical knowledge increases, and fails to honor the reality that states have substantial interests of their own beginning ‘from the outset of pregnancy…’ Indeed, by 15 weeks, a baby’s development is so great – and the likelihood of her eventual live and healthy birth so high – that it makes little sense to say a state has no interest in protecting the infant’s life, not to mention the state’s substantial interests in the mother’s life and safety, the baby’s pain and suffering, and the ‘coarsen(ing of) society to the humanity of… all vulnerable and innocent human life.'”

So the state of Mississippi states that given the conflict in the Supreme Court precedents and advances in our medical and scientific knowledge since 1973, the Supreme Court should clarify whether abortion prohibitions before viability are always unconstitutional. 

By granting cert on this question, at least four of the justices agree that clarification is needed.

I’m not confident that a Supreme Court ruling will overturn Roe v. Wade, although it could, and it is encouraging that certiorari was granted on a petition that questions Roe.

I think it’s more likely that the Supreme Court will limit their ruling to walking back the limits that Planned Parenthood v. Casey and Roe place on state restrictions and regulation of abortion. 

That said, certiorari, in this case, probably would not have been granted even two years ago. Even if Roe is not overturned, a Supreme Court decision could bolster state attempts to restrict abortion on demand. Either way, it could be a huge win for the pro-life cause in courts. 

That said, this case represents the best opportunity pro-lifers have had to overturn Roe v. Wade since Casey.