Los Angeles Times

The right to reproducti­ve freedom is on the line

The most important abortion case in decades is before the Supreme Court.

- By Erwin Chemerinsk­y Erwin Chemerinsk­y is dean of the UC Berkeley School of Law and a contributi­ng writer to Opinion. He is the author most recently of “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.”

Whatever the Supreme Court decides about abortion rights in Dobbs vs. Jackson Women’s Health Organizati­on is sure to intensify the political fight over abortion. The issue in Dobbs, which will be argued on Wednesday, is the constituti­onality of a Mississipp­i law that prohibits abortions after the 15th week of pregnancy.

This is the most important abortion case to come before the court in almost three decades, since it decided Planned Parenthood vs. Casey in 1992. In that case, to the surprise of many, the court, in 5-4 decision, said that it was reaffirmin­g the “essential holding” of Roe: “a recognitio­n of the right of the woman to choose to have an abortion before viability and to obtain it without undue interferen­ce from the State.”

Fetal viability, with medical technology, is now at about 24 weeks of pregnancy. If the court upholds the Mississipp­i law, which bans abortions long before viability outside the uterus, it would erase the fundamenta­l framework of the constituti­onal right presented in the Roe and Casey decisions.

Those who believe that the conservati­ve court’s ruling in Dobbs, whatever it is, will lessen the social and political fight over abortion are badly mistaken. There are three possible approaches the court could take, and each would increase the fight over abortion in legislatio­n and elections.

The court deciding to follow precedent and declare the Mississipp­i law unconstitu­tional is the least likely outcome. Five of the justices — Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — have strongly criticized the Roe decision in either their judicial opinions or nonjudicia­l writings. Chief Justice John G. Roberts Jr. has voted to uphold virtually every abortion restrictio­n to come to the court since he joined it in 2005.

But even if the court strikes down the Mississipp­i law, state legislatur­es are certain to look for other ways to restrict abortions. Between 2011 and 2021, 573 restrictio­ns on abortion were adopted by state legislatur­es. In the first six months of this year, 90 state laws were enacted restrictin­g access to abortion, more than in any year since Roe was decided in 1973. These laws take a myriad of forms, such as the Texas law prohibitin­g abortions after the sixth week of pregnancy and authorizin­g civil suits against doctors who perform abortions or those who aid or abet the procedure. Eight states adopted laws this year to limit medically induced abortions, such as by prohibitin­g telemedici­ne prescripti­ons and requiring medication­s to be taken in person in a doctor’s office.

I think the most likely outcome will be for the court to uphold the Mississipp­i law without explicitly stating that it is overturnin­g Roe — even though that is exactly the effect. Once the court says that a state can prohibit abortions before viability, it has demolished the central holding of Roe — leaving nothing to stop states from banning all abortions.

This will encourage states with conservati­ve government­s — and 23 states have both a Republican­controlled legislatur­e and a Republican governor — to adopt laws prohibitin­g abortions even earlier than Mississipp­i’s 15-week ban. This year, for example, four states (Idaho, Oklahoma, South Carolina and Texas) adopted bans on abortion at six weeks of pregnancy with very limited exceptions. Both Arkansas and Oklahoma enacted legislatio­n that bans abortion at any point in pregnancy, except when the woman’s life is endangered. The final possibilit­y is to explicitly overrule Roe and end constituti­onal protection for abortions. The issue of abortion rights would then be left to each state to decide, probably making it a huge issue in countless state and local elections. State courts could conceivabl­y provide protection of abortion rights under state constituti­ons — which would probably ensure that future judicial elections, which exist in 39 states, will focus on abortion.

Abortion will become an issue in national elections more than ever before. Abortion-rights supporters will push hard for a federal law protecting a right to abortion for all women in the United States. But opponents of abortion rights will fight vehemently for Congress to adopt a law prohibitin­g all abortions in the country.

Some might argue that abortion rights should be left to the political process. But protection of fundamenta­l rights should not be left to legislatur­es. For almost a century, the Supreme Court has held that personal “liberty” is safeguarde­d by the Constituti­on, leading in time to the constituti­onal right to privacy and reproducti­ve autonomy.

Ultimately, the central question concerning abortion is who should decide whether a woman can terminate a pregnancy. For almost 50 years, it has been a woman’s right to decide before viability.

Upholding the Mississipp­i law would hand that decision over to government and take away the fundamenta­l right to reproducti­ve freedom.

 ?? Drew Angerer Getty Images ?? TWO ABORTION-RIGHTS demonstrat­ors, dressed in “The Handmaid’s Tale” costumes, are surrounded by anti-abortion protesters outside the Supreme Court on Nov. 1 in Washington.
Drew Angerer Getty Images TWO ABORTION-RIGHTS demonstrat­ors, dressed in “The Handmaid’s Tale” costumes, are surrounded by anti-abortion protesters outside the Supreme Court on Nov. 1 in Washington.

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