Abortion brief dynamites standing law

by Harry Litman

The new Supreme Court conservative supermajority has already radically changed notions of law in some pockets of America. For proof, look no further than the brief that the state of Mississippi filed last week in the most closely watched abortion case in a generation, Dobbs v. Jackson Women’s Health Organization, which the Supreme Court will decide next term.

The case concerns the constitutionality of a 2018 Mississippi law that generally prohibits abortion after 15 weeks of pregnancy. That Mississippi passed this law is itself breathtaking. The core holding of the Supreme Court’s abortion jurisprudence — reaffirmed as a “super duper precedent” by Chief Justice John G. Roberts Jr. at his confirmation hearing — is that the state is constitutionally forbidden from interfering with a woman’s decision to terminate a pregnancy before the fetus reaches viability, roughly at 24 to 28 weeks.

The Mississippi law blatantly and expressly contradicts both the core holding and the principle of precedent, also known as stare decisis, meaning “standing by things decided,” which is elementary in constitutional law. It is as if a state were to pass a law saying criminal suspects could not be apprised of their right to remain silent, established by the 1966 Miranda decision, or that newspapers could be liable for defamation based on mere negligence rather than “actual malice,” in flat contravention of the 1964 ruling in New York Times v. Sullivan.

States are entitled to respect within our federalist constitutional system, but they in turn are no less obligated than the federal government to uphold the Constitution and faithfully apply controlling precedent.

Mississippi’s cheek in passing a law that is irreconcilable with governing law is an act of official irresponsibility of a piece with the South’s behavior during Reconstruction and the civil rights era. It’s no wonder the federal district court and court of appeals made quick work of striking down the 15-week abortion law.

And yet the Supreme Court agreed to hear Mississippi’s appeal of those decisions, implicitly validating the state’s conduct as reasonable. Whatever the court’s conservatives think of the constitutionality of abortion rights, they should not be countenancing rank disavowal of its precedents. Nor does any amount of signaling that the court may now be open to overruling Roe v. Wade justify Mississippi’s provocation.

The brief Mississippi filed in Dobbs v. Jackson Women’s Health Organization takes the state’s brazen disrespect for current law a giant step further. “Nothing in constitutional text, structure, history or tradition,” it argues, “supports a right to abortion.” It offers no effective line of escape from the precedents set by Roe and its affirming progeny. It calls them “egregiously wrong” and repeats the claim that “the conclusion that abortion is a constitutional right has no basis in text, structure, history or tradition.”

It’s hard to imagine a more extreme and sneering broadside against stare decisis. Roe v. Wade has been under siege over the last five decades but never before have the attacks demeaned and trivialized 50 years of jurisprudence as a lawless constitutional blunder.

In the major follow-up case to Roe, Planned Parenthood of Southeastern Pennsylvania v. Casey, Pennsylvania argued that the court didn’t need to reexamine Roe in order to uphold the state’s limits on the right to abortion, but if it did, it should hold that abortion legislation should be reviewed with more deference to the state. 

Even the successful battle in the last century to overturn the court’s infamous Plessy v. Ferguson “separate but equal” doctrine wasn’t a frontal assault that dynamited precedent. It was a yearslong strategy that carefully dismantled racial segregation, theoretical brick by brick, to get to the court’s landmark decision in Brown v. Board of Education.

Mississippi’s abortion strategy, besides being radical, is boneheaded. It is way too late in the day to argue “nothing in constitutional text, structure, history, or tradition supports a right to abortion.” Over time, it’s become clear that the right to choose to have an abortion is part of a constellation of unenumerated constitutional rights that the court has repeatedly recognized across a range of settings.  Much of the coming fight over the Mississippi case — get ready for a donnybrook — will be about whether Roe alone can be overruled among those precedents.

In other words, if the court winds up undoing Roe, the focus will be on the gravity of the state’s interest in limiting individual rights against its interest in women’s liberty. Although it’s plausible to argue that the court’s earlier abortion rulings have given women’s liberty too much relative weight, it’s much less plausible, even witless, to single out abortion rights among other unenumerated rights as utterly unconstitutional.

Not that such considerations matter to the string of anti-abortion rights states, emboldened by the court’s new makeup, that have followed Mississippi’s lead and passed their own legislation pushing beyond the limits of existing law.

These states may all be living in a constitutional fairy tale. But they are acting on the hope that the court’s conservative supermajority will make it all come true. And it might.

 Harry Litman is a former U.S. attorney and the host of the podcast “Talking Feds.” Twitter: @HarryLitman