The current constitutional rule regarding abortion holds that women have the right to choose whether to continue with their pregnancy before a fetus becomes viable. Fetal viability is the point after which a fetus is thought to have a chance of surviving outside a woman’s body, thus giving the government a legitimate state interest in the health and well-being of the fetus separate and apart from the parent. Fetal viability is believed to take place around 23 to 24 weeks.
Forced-birth activists have been incredibly successful at whittling away a pregnant woman’s right to bodily autonomy before fetal viability. And they’ve been incredibly successful at making it hard for women to access their rights—with the help of abortion providers and drugs—during the brief window many states will still allow them to have any. But fetal viability is more or less the legal line in the sand and has been since the landmark decision in Roe v. Wade in 1973. Before her fetus reaches viability, a pregnant woman is to be treated as a fully formed human being. After viability, Republican-controlled states are allowed to treat her as a malfunctioning incubator who can be forced to serve the state’s alleged interests against her free will.
But that arrangement has never satisfied conservatives. They have consistently sought to take away the possibility of autonomous choice earlier and earlier in the gestation process. For some conservatives, the ones who argue against making the “morning-after pill” available, a woman loses her right to her own body the moment she has sex. Given that those conservatives also tend to be against giving women access to contraceptives, their real game is taking away a woman’s autonomy the moment she even thinks about having sex. Still other conservatives make no exception for rape and thus take away a woman’s autonomy the moment somebody else forces themselves upon her.
To exercise their ultimate control over women’s bodies, forced-birth activists have always needed to control one particular branch of government: the judiciary—in particular, the Supreme Court. Now, they do. The replacement of Anthony Kennedy, a reluctant supporter of basic autonomy, with alleged attempted rapist Brett Kavanaugh, and the replacement of Ruth Bader Ginsburg with noted forced-birth proponent Amy Coney Barrett, has given conservatives a clear 6-3 majority on the Supreme Court. For the first time since Roe v. Wade was handed down, conservatives have the votes to overturn it.
The frontal attack will come next year. On Monday, the Supreme Court agreed to hear Dobbs v. Jackson Women’s Health Organization. At issue in the case is the very concept of fetal viability. Mississippi passed a law in 2018 outlawing abortions after 15 weeks of gestation, except in cases of medical emergency or “severe fetal abnormality.” There is no exception for cases of rape or incest.
As 15 weeks is before fetal viability, the law is a point-and-click violation of Roe and its progeny, Planned Parenthood v. Casey. Mississippi’s law is unconstitutional on its face.
That’s not just me saying that. Mississippi’s law was challenged by the state’s only licensed abortion provider, the Jackson Women’s Health Organization, which won its case in federal district court. The case then made its way to the US Court of Appeals for the Fifth Circuit, the notoriously conservative circuit court that oversees Texas, Louisiana, and Mississippi. There, the Mississippi law was thrown out on a rail. Even the Trump-appointed conservative ideologue Judge James C. Ho concurred with the majority ruling from Judge Patrick Higginbotham (himself a Ronald Reagan appointee) that the law was unconstitutional. Ho wrote separately to make the usual conservative arguments in favor of forced birth, but reluctantly had to admit that Supreme Court precedent was clear on the issue: Fetal viability is the line the government cannot cross.
The only court that can overturn Supreme Court precedent is the Supreme Court. The fact that the court has taken the case is a pretty good indication that it intends to do just that.
Part of the reason we’re here is that the liberal legal argument for abortion rights has always been a little weak. Supreme Court precedent has treated abortion as a “balancing test” between the rights of women and the allegedly compelling state interest in forcing women to do something they don’t want to do. By grounding abortion rights in the right to privacy (a substantive right I believe exists, but one not explicitly spelled out in constitutional text), the court in Roe and Planned Parenthood opened the door for all manner of restrictions to be placed on a woman’s right to choose.
I’d have decided Roe on straight 14th Amendment equal protection grounds. Men have full control over their reproductive system, so should women, the end. Failing that, I’d have decided Roe on 13th Amendment grounds. Involuntary servitude shall not exist in these United States, so forcing a woman to labor for nine months, for free, when she doesn’t want to, because the government thinks she should, is flatly unconstitutional. No balancing required.
But we’ve never done it that way. We’ve always accepted the lie that the state has a legitimate and compelling interest in forcing women to give birth if they happen to get pregnant after sexual intercourse—regardless of whether that intercourse was consensual. We’ve acted like forcing people to pass a bowling ball through their genitals is something a legitimate government can compel in the best interests of “society” and it’s just a question of when and how.
All forced-birth activists have ever had to do is chip away at the “when” and make it ever easier for the government to exercise its coercion.
We’ll see, by around this time next year, whether the barbarians finally get their way. If the new justices, Kavanaugh and Barrett, hold fast to Supreme Court precedent (as they promised to do during their confirmation hearings), they will reject this Mississippi law, and in so doing reframe the abortion debate. An opinion in defense of precedent will signal to forced-birth advocates that attacking fetal viability is a no-go.
Or the new justices could go the other way. They could prove that they were lying during their confirmation hearings and strike down the fetal viability standard as they were sent to the Supreme Court to do.
The latter is far more likely. Conservatives have been trying to take away women’s autonomy through a thousand cuts. But now they have the votes to use a chain saw.