Only time will truly tell which side of the pendulum the Court will swing. However, given the current composition of the Court and the line of questioning by the six conservative justices during oral arguments (especially, Justice Barrett’s questions on safe haven laws, Justice Alito’s questions about secularism and the origin of life, Justice Kavanaugh’s questions about the US Constitution’s “silence” on abortion matters, Justice Thomas’ questions about the possibility of exploring standards apart from the viability standard, Justice Roberts’ questions about the central holding of Roe and Justice Gorsuch’s questions about overturning precedent), the Court appears poised to uphold the Mississippi law and bringing back the abortion issue to the states. If this does happen, State legislatures across America would effectively be allowed to prohibit pre-viability abortions at any point they wish- from 0 days (which is an outright ban) to 6 weeks (eg: Texas) to 6 months (eg: California) or more.
In a post-Roe America, abortion legality would be similar to same-sex marriage recognition – with almost half the country recognising the right, and the other half banning it. The Guttmacher Institute reports that 23 US States currently have restrictive anti-abortion laws, while only 16 US states and the District of Columbia have laws that protect the right to abortion. Of the 23 states, some have retained their pre-Roe laws which could go into effect if Roe is overturned, while others have ‘trigger laws’ which are preemptive abortion bans that expressly mention the State’s intent to ban abortion as and when Roe is overturned.
A decision in favor of Mississippi may also spell concern for married same-sex couples. After all, same-sex marriage was also a deeply polarising issue for almost a decade in the US and culminated in an equally polarising 5-4 decision in Obergefell v. Hodges that ended State bans on same-sex marriage all over the United States.
Although advocate Steward categorically mentioned during oral arguments that the Court should not revisit Obergefell or Lawrence v Texas (a landmark case that legalised private and consensual same-sex conduct between adults), a decision in favor of Mississippi could bolster conservative legislators to open the floodgates for judicial review of these cases.
It should be pointed out that Roe, Casey, Lawrence, and Obergefell all drew from the substantive due process clause in the Fourteenth Amendment. It was this reading of the law that allowed the Supreme Court to grant women the right to privacy and abortion, and gay adults the right to marry and engage in private and consensual same-sex conduct. Thus, a rollback of Roe and Casey could mean a potential rollback of other laws that draw from similar legislative principles- principles that conservative jurists are eager to dismantle.
It truly would not be surprising for this conservative super-majority Court to consider reviewing cases involving potential new state bans on same-sex marriage – if and when they appear or state bans and/or restrictions on same-sex adoption. After all, all State legislators need to do is to demonstrate a compelling State interest in ‘protecting and preserving traditional marriage and family values’.
It should be noted that the abortion issue is very different from same-sex marriage because abortion involves the termination of another life, while same-sex marriage does not and it is precisely for this reason that advocate Steward urged the Court to revisit the applicability of stare decisis in Roe and Casey and not Obergefell and Lawrence. Because, while Obergefell and Lawrence laid out clear rules, Roe and Casey purportedly did not. That being said, given the spate of anti-LGBTQ+ legislation currently sweeping the nation, advocate Steward’s assurance doesn’t seem very compelling.
The Dobbs verdict is expected to come out in June or July of 2022. Whatever be the Court’s decision, it is bound to be momentous and polarising in equal measure.
Source: Barandbench
