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Roe Retread?

Controversial Supreme Court case points to an uncertain legal future.

Yesterday, December 1, 2021, the Supreme Court heard arguments in the case of Dobbs v. Jackson Women’s Health Organization, which revolves around a Mississippi state law that would make abortion after fifteen weeks of gestation illegal in most cases.

Numerous outlets, including CBS News, CNN, and The 19th, report that the Court seems likely to uphold the Mississippi statute, which would represent a departure from the de facto post-Roe v. Wade-and-Casey v. Planned Parenthood consensus that banning abortions prior to the point at which a fetus can survive outside the womb is constitutionally prohibited. (The Mississippi statute conflicts with the fetal viability guideline, as viability typically occurs after about twenty-four weeks of pregnancy.)

Whether or not the Court will go further than this and repudiate the ruling of Roe outright remains doubtful, but if it rejects fetal viability as a “line in the sand,” it is uncertain what, if any, standard would replace it.

Meanwhile, SCOTUSblog reported that at least a few justices have mooted the possibility of overturning Roe and reverting questions of abortion to the states and Congress, quoting Justice Brett Kavanaugh as saying that the Supreme Court ought to be “scrupulously neutral” on the issue. This would functionally permit the states to adopt their own abortion laws without any limitation from the Court, which would represent a dramatic break with current precedent.

If the Court’s opinion does seriously revise the post-Roe status quo, expect a flurry of legislative activity from the states (as well as possibly from Congress). We at LRI will certainly be monitoring the situation, and you can watch our website for coverage of further developments.

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