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May 06, 2022

Dobbs v. Jackson Women’s Health Organization

Abortion Rights

Does a State’s Ban on Abortion After 15 Weeks of Pregnancy Violate the Constitution?

Case at a Glance

Mississippi enacted legislation that prohibits doctors from performing an abortion after 15 weeks of pregnancy. The law contains two exceptions, one for a “medical emergency” and another for “severe fetal abnormality.” Jackson Women’s Health Organization, the only abortion provider in the state, and one of its doctors sued, arguing that Mississippi’s ban creates an undue burden on a woman’s right to an abortion before viability in violation of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.

Dobbs v. Jackson Women’s Health Organization
Docket No. 19-1392

Argument Date: December 1, 2021 From: The Fifth Circuit by Steven D. Schwinn
University of Illinois Chicago School of Law, Chicago, IL


Under Roe v. Wade, a woman has a fundamental right to an abortion. Under Planned Parenthood v. Casey, this means that a state can only regulate abortion before fetal viability insofar as the regulation does not impose an “undue burden” on the right to abortion. Mississippi’s ban on abortion after 15 weeks of pregnancy runs headlong into this framework and tests the limits and durability of the fundamental right to abortion under Roe and Casey.


Do all previability prohibitions on abortion violate the Constitution?


In 2018, Mississippi enacted the Gestational Age Act. The Act prohibits doctors from performing abortions on women who are more than 15 weeks pregnant. (In determining the length of a pregnancy, the clock starts running at a woman’s last menstrual period (LMP). As a result, the parties sometimes say that the Act bans abortions after “15 weeks LMP.”)
The Act contains two exceptions. The first one allows a doctor to perform an abortion on a woman more than 15 weeks pregnant in the case of a “medical emergency.”

The Act defines a “medical emergency” as a situation where, because of a woman’s physical condition or illness, a doctor must perform an abortion in order to save the woman’s life or to prevent “a serious risk of substantial and irreversible impairment of a major bodily function.”

The second exception allows a doctor to perform an abortion on a woman more than 15 weeks pregnant in the case of a “severe fetal abnormality.” The Act defines a “severe fetal abnormality” as “a life-threatening physical condition that, in reasonable medical judgment, regardless of the provision of live-saving medical treatment, is incompatible with life outside the womb.”

A doctor who “intentionally or knowingly” violates the Act is subject to license suspension or revocation. On the same day that the Act took effect, Jackson Women’s Health Organization (JWHO) and one of its doctors sued. JWHO is the only abortion provider in Mississippi; it performs abortions up to the 16th week of a woman’s pregnancy. JWHO argued that the Act violated the fundamental right to abortion under Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood ofSoutheastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and sought an injunction against its enforcement.

The district court granted a permanent injunction, and the United States Court of Appeals for the Fifth Circuit affirmed. This appeal followed.

Case Analysis

For almost 50 years, since Roe v. Wade, the Supreme Court has recognized that a woman has a fundamental right to an abortion. For almost 30 years, since Casey, the Court has said that a state can regulate abortion before a fetus is viable outside the womb only insofar as the state regulation does not create an “undue burden” on a woman’s right to an abortion. After viability, a state may ban abortion entirely, but the state still has to provide an exception for the life or health of the woman.

Mississippi’s ban on abortion after 15 weeks of pregnancy runs headlong into this framework, or at least tests its limits. That’s because fetal viability occurs around 22 to 24 weeks of pregnancy, and an outright ban before that time (at 15 weeks of pregnancy) plainly creates an “undue burden,” at least for some women.

Mississippi takes on this framework directly and argues that the Constitution does not protect a woman’s right to abortion. It claims that Roe and Casey “are grievously wrong, unworkable, damaging, and outmoded” and that the Court should overrule them. The state says that because the Constitution does not protect a right to abortion, the Court should scrutinize its Act under mere “rational basis review,” the low-level, deferential standard that the Court uses to analyze state regulations of economic matters and interests that are not fundamental. Under this standard, Mississippi asserts that the Court should uphold its ban, because the ban is rationally related to the state’s interests in “protecting unborn life, women’s health, and the medical profession’s integrity.”

But even if the Court declines to overturn Roe and Casey and continues to recognize the fundamental right to abortion, the state argues that the Court should reject Casey’s viability benchmark. The state says that the “viability rule has no constitutional basis, it harms state interests, and it produces other severe negative consequences.”

Mississippi offers two alternatives to the viability line: the Court could rule that the Act survives any level of scrutiny (including the most rigid “strict scrutiny”) and put off a determination of what specific level of review applies; or the Court could “clarify the undue-burden standard” and hold that the Act does not create an undue burden. Under this latter option, Mississippi asserts that the Court could interpret the undue-burden standard to mean that a state could prohibit previability abortions if the state restriction does not erect a substantial obstacle to “a significant number of women” seeking abortions. Under this approach to the undue-burden standard, Mississippi contends that its Act does not create an undue burden, because JWHO only performs abortions up to 16 weeks of pregnancy, and “so the Act reduces by only one week the time in which abortions are available in Mississippi.”

JWHO counters first that the Court should not overturn Roe and Casey. JWHO says that the Court in Casey already considered all the arguments that Mississippi makes for overturning Roe—and rejected them. As a result, it claims that “Casey is precedent on top of precedent” and that the case for retaining Roe and Casey has only grown stronger in the nearly 30 years since Casey, and the Court’s repeated reaffirmations of the fundamental right to previability abortion.

Moreover, JWHO asserts that there is no reason to revisit Roe and Casey or the viability benchmark. JWHO says that a woman today still has “the personal autonomy and bodily integrity interests that underpin” the fundamental right to abortion and that the viability line protects those interests “in a principled and workable way.” JWHO also contends that nothing has changed in the fundamental liberty interest that Roe and Casey protect. It says that if anything, “the years since Casey have only reinforced the importance of access to legal abortion for gender equality.” For all these reasons, JWHO contends that there is no reason to revisit Roe and Casey or the viability benchmark.

JWHO argues that Mississippi’s proffered alternatives to the viability benchmark are unworkable and only “confirm that the Court was right in Casey to retain the viability line.” It says that lower courts could not administer any standard other than the “undue burden” standard “against the inevitable cascade of state abortion bans that would follow if the Court” changes the standard. And it claimsthat the state’s version of the “undue burden” standard would, as a practical matter, eviscerate Roe and Casey.
(The government weighs in to support JWHO and makes substantially similar arguments.)


Dobbs is almost certainly the most important case this Term and probably the most important case in the last several Terms, or even decades. That’s because it puts front and center a nearly 50-year-old precedent that is a principal focal point in constitutional law and politics. Political conservatives have fought for decades to gain a majority on the Court that is willing to overturn Roe v. Wade, while political progressives have fought to preserve it. At the same time, Roe v. Wade has served as an organizing principle in national, state, and even local politics for both the right and the left.

That said, Roe really is a super-precedent. The Court has reaffirmed it time and again and flatly rejected strong calls to overturn it, including in Casey, where the Court laboriously considered, and rejected, all the arguments against it. In fact, the Court reaffirmed the Casey framework twice in the last five years, first in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), and just last year in June Medical v. Russo, 140 S. Ct. 2103 (2020). Those cases were close, to be sure, but the rulings still stand.

But with Justice Amy Coney Barrett’s replacement of Justice Ruth Bader Ginsburg (and Justice Brett Kavanaugh’s earlier replacement of Justice Anthony Kennedy), the Court today has six justices who would almost certainly rule that the Constitution does not protect a fundamental right to abortion. Still, that doesn’t ensure that the Court will rule that the Constitution does not protect a fundamental right to abortion. That’s because two or more of those six may vote to uphold Roe and Casey under principles of stare decisis, even if they disagree with Roe and Casey on the merits. (Chief Justice John Roberts already telegraphed some support for stare decisis in this context when he famously voted to overturn Louisiana’s abortion restrictions in June Medical based on the Court’s ruling in a similar case in Hellerstedt—even though he dissented in Hellerstedt. It’s not obvious that his approach to stare decisis in June Medical will carry over to Roe and Casey, however.)

If so, Mississippi is ready with its two alternatives. These would allow the Court to validate the fundamental right to abortion but abandon the undue-burden test, the viability line, or both. The Court could nominally affirm Roe and maybe even Casey, while in reality taking large chunks out of them. Given the Court’s incremental approach to overturning other long-standing precedents, this is a real possibility.

One final note. The Court already this Term heard oral arguments in two other critical abortion cases, U.S. v. Texas and Whole Woman’s Health v. Jackson, both arising out of Texas’s unprecedented restriction on abortion. Those cases are obviously related to this one insofar as they address a state’s restriction on the fundamental right to abortion. But the core issue in those cases is procedural, not (necessarily) substantive—whether the plaintiffs can sue to stop Texas from implementing the law.

Steven D. Schwinn

Professor of law at the University of Illinois Chicago School of Law

Steven D. Schwinn is a professor of law at the University of Illinois Chicago School of Law and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at 312.386.2865 or [email protected].

PREVIEW of United States Supreme Court Cases 49, no. 3 (November 29, 2021): 16–22. © 2021 American Bar Association

Attorneys for the Parties

For Petitioners Thomas Dobbs, et al. (Scott Grant Stewart, 601.359.5563)

For Respondents Jackson Women’s Health Organization, et al. (Hillary Anne Schneller, 917.637.3777)

Amicus Briefs

In Support of Petitioners Thomas Dobbs, et al.

22 State Policy Organizations (J. Thomas Smith Jr., 202.669.1452)

141 International Legal Scholars (Antony B. Kolenc, 214.243.1781)

228 Members of Congress (Steven Henry Aden, 252.673.2282)

240 Women Scholars and Professionals, and Prolife Feminist Organizations (Teresa Stanton Collett, 651.271.2958)

375 Women Injured by Second and Third Trimester Late Term Abortions and Abortion Recovery Leaders (Allan E. Parker Jr., 210.614.7157)

396 State Legislators from 41 States (Jeffrey A. Shafer, 513.577.7380)

Advancing American Freedom, Inc., Minnesota Family Council, Center for Political Renewal, the Family Leader (Iowa), Family Heritage Alliance, and Nebraska Family Alliance (Renee Kristine Carlson, 612.789.8811)

African American, Hispanic, Roman Catholic and Protestant Religious and Civil Rights Organizations and Leaders (Mathew D. Staver, 407.875.1776)

Alabama Center for Law and Liberty (Matthew James Clark, 256.510.1828)

American Association of Pro-Life Obstetricians and Gynecologists (Andrew C. Nichols, 571.549.2645)

American Center for Law and Justice and Bioethics Defense Fund (Jay Alan Sekulow, 202.546.8890)

American College of Pediatricians and Association of American Physicians & Surgeons (Christopher Ernest Mills, 843.606.0640)

American Cornerstone Institute and Its Founder Dr. Benjamin S. Carson (Edward Mark Wenger, 202.737.8808)

Americans United for Life (Clarke David Forsythe, 312.285.4568)

Becket Fund for Religious Liberty (Mark Leonard Rienzi, 202.955.0095)

Billy Graham Evangelistic Association, et al. (Frederick W. Claybrook Jr., 202.250.3833)

Care Net, a National Affiliation Organization of 1,200 Pregnancy Help Centers, and Alpha Center, a South Dakota Registered Pregnancy Help Center (Harold J. Cassidy, 732.747.3999) Education Fund (Scott William Gaylord, 336.279.9331)

Catholic Medical Association, National Association of Catholic Nurses-USA, Idaho Chooses Life, and Texas Alliance for Life (Maura Katherine Quinlan, 717.460.8565)

Center for Family and Human Rights (Alexis Irene Fragosa, 626.241.0594)

Center for Medical Progress and David Daleiden (Charles S. LiMandri, 858.759.9930)

Center for Religious Expression (Nathan W. Kellum, 901.684.5485)

Christian Legal Society and Robertson Center for Constitutional Law (Kimberlee Wood Colby, 703.894.1087)

Christian Medical & Dental Associations (D. Kent Safriet, 540.341.8808)

Claremont Institute’s Center for Constitutional Jurisprudence (Anthony Thomas Caso, 916.601.1916)

Cleveland Lawyers for Life (David F. Forte, 216.403.3298)

Commissioner Andy Gipson, et al. (William Lucien Smith, 601.965.8175)

Concerned Women for America (Mario Alberto Diaz, 202.488.7000)

Connie Weiskopf and Kristine L. Brown (Kristine Lee Brown, 302.515.2721)

Conservative Legal Defense and Education Fund (Patrick Michael McSweeney, 703.621.3300)

David Boyle (David Christopher Boyle, 734.904.6132)

Democrats for Life of America Five Democratic Legislators from Five Individual State Legislatures (Julian Lenwood McPhillips Jr., 334.262.1911)

Elliot Institute (Jay Alan Sekulow, 202.546.8890)

Ethics and Public Policy Center (Charles Justin Cooper, 202.220.9600)

European Centre for Law and Justice (Jordan Adam Sekulow, 202.546.8890)

Family Research Council (Thomas Ryan McCarthy, 703.243.9423)

Foundation for Moral Law (John Allen Eidsmoe, 334.262.1245)

Foundation to Abolish Abortion, et al. (Bradley Wayne Pierce, 512.598.1092)

Good Counsel, Inc. (Sean Richard Collier, 908.581.7180)

Governor Henry McMaster and 11 Additional Governors (William Grayson Lambert, 803.734.2100)

Hannah S., John S., and Marlene S. (Mary Jane Browning, 573.230.6945)

Heartbeat International, Inc. (Danielle Merry White, 614.885.7577)

Human Coalition Action and Students for Life of America (Chelsey Danaye Youman, 214.629.4806)

Illinois Right to Life, et al. (Thomas Gerald Olp, 312.782.1680)

Intercessors for America Including Its Intercessor Prayer Partners (William Jeffrey Olson, 703.356.5070)

Jewish Coalition for Religious Liberty (Howard Nathan Slugh, 954.328.9461)

Jewish Prolife Foundation, the Coalition for Jewish Values, Rabbi Yacov David Cohen, Rabbi Chananya Weissman, and Bonnie Chernin (President, Jewish Life League) (Allan E. Parker Jr., 210.614.7157)

Jonathan English (Jonathan English, 202.469.0116)

Joseph W. Dellapenna (Frederick W. Claybrook Jr., 202.250.3833)

Judicial Watch, Inc. (Meredith Leigh Di Liberto, 202.646.5172)

Lee J. Strang (Philip Daniel Williamson, 513.357.9417) LONANG Institute (Kerry Lee Morgan, 734.281.7100)

March for Life Education and Defense Fund (Jonathan Philip Lienhard, 540.341.8808)

Maureen L. Condic, Ph.D. and the Charlotte Lozier Institute (Gene Clayton Schaerr, 202.787.1060)

Melinda Thybault, Founder of the Moral Outcry Petition, et al. (Allan E. Parker Jr., 210.614.7157)

Monique Chireau Wubbenhorst, M.D., M.P.H., et al. (Heather Gebelin Hacker, 512.399.3022)

National Catholic Bioethics Center, et al. (William Wagner, 517.643.1765)

National Right to Life Committee and Louisiana Right to Life Federation (James Bopp Jr., 812.232.2434)

Pacific Justice Institute (Frederick W. Claybrook Jr., 202.250.3833)

Pennsylvania Pro-Life Federation (Maura Katherine Quinlan, 717.460.8565)

Priests for Life (Robert Joseph Muise, 734.635.3756)

Professor Kurt T. Lash (Kevin Christian Walsh, 804.287.6018)

Professor Randy Beck (Elizabeth Brooks Scherer, 919.755.8790)

Professor Stephen G. Gilles (Stephen Gilles, 860.992.8130)

Professors Mary Ann Glendon and O. Carter Snead (Heather Gebelin Hacker, 512.399.3022)

Prolife Center at the University of St. Thomas (Teresa S. Collett, 651.271.2958)

Reason for Life (Samuel David Green, 661.524.5770)

Rep. Steve Carra and 320 State Legislators from 35 States (Matthew Edwin Gronda, 989.249.0350)

Robin Pierucci, M.D., and Life Legal Defense Foundation (Catherine Wynne Short, 707.224.6675)

Roman Catholic Diocese of Jackson and Roman Catholic Diocese of Biloxi (Christian Janet Strickland, 228.388.7441)

Scholars of Jurisprudence John M. Finnis and Robert P. George (Robert P. George, 609.658.4510)

Senators Josh Hawley, Mike Lee, and Ted Cruz (Joshua David Hawley, 202.224.6154)

Texas, et al. (Judd Edward Stone II, 512.936.1700)

Texas Right to Life (Jonathan F. Mitchell, 512.686.3940)

Thomas More Society (Paul Benjamin Linton, 847.291.3848)

Trinity Legal Center (Linda Boston Schlueter, 210.274.5274)

U.S. Conference of Catholic Bishops and Other Religious Organizations (Anthony Richard Picarello Jr., 202.541.3311)

Women Legislators and the Susan B. Anthony List (H. Christopher Bartolomucci, 202.787.1060)

World Faith Foundation and Institute for Faith and Family (James L. Hirsen, 714.283.8880)

In Support of Respondents Jackson Women’s Health Organization, et al.

236 Members of Congress (John Arak Freedman, 202.942.5316)

547 Deans, Chairs, Scholars, et al. (Edward Todd Waters, 202.466.8960)

896 State Legislators (Claude G. Szyfer, 212.806.5400)

Abortion Care Network, Bixby Center for Global Reproductive Health, Medical Students for Choice, National Abortion Federation, Physicians for Reproductive Health, and Planned Parenthood Federation of America Inc. (E. Joshua Rosenkranz, 212.506.5380)

Abortion Funds and Practical Support Organizations (Stephanie Toti, 646.490.1083)

Advocates for Youth, Inc. and Neo Philanthropy, Inc. d/b/a We Testify (Erica Worth Harris, 713.651.9366)

American Bar Association (Reginald M. Turner Jr., 312.988.5000)

American Civil Liberties Union and the American Civil Liberties Union of Mississippi (Brigitte Adrienne Amiri, 212.519.7897)

American College of Obstetricians and Gynecologists, American Medical Association, et al. (Kimberly A. Parker, 202.663.6987)

American Historical Association and Organization of American Historians (Jessica Lynn Ellsworth, 202.637.5886)

American Society for Legal History and Other Scholars (Catherine M. Foti, 212.856.9600)

Americans United for Separation of Church and State, American Humanist Association, Bend the Arc: A Jewish Partnership for Justice, and Interfaith Alliance Foundation (Richard Brian Katskee, 202.466.3234)

Anthony Hawks (Stephen C. Leckar, 202.223.5600)

Autistic Self Advocacy Network and the Disability Rights Education and Defense Fund (Geoffrey M. Wyatt, 202.371.7008)

Birth Equity Organizations and Scholars (Carolyn Frances Corwin, 202.662.5338)

California, et al. (Helen H. Hong, 619.738.9693)

California Women’s Law Center (Theane Evangelis Kapur, 213.229.7000)

Catholics for Choice, et al. (Eugene Martin Gelernter, 212.336.2000)

Campaña Nacional por el Aborto Libre, Seguro y Accesible and Other Puerto Rican Organizations (Hiram Alberto Melendez-Juarbe, 787.415.5192)

Cecilia Fire Thunder, National Indigenous Women’s Resource Center, the Native American Community Board, and Additional Advocacy Organizations and Individuals (Lael Ruth Echo-Hawk, 206.271.0106)

Constitutional Accountability Center (Brianne Jenna Gorod, 202.296.6889)

Constitutional Law Scholars Lee C. Bollinger, et al. (Orin Samuel Snyder, 212.351.4000)

Current and Former Prosecutors and Law Enforcement Leaders, et al., (John P. Mastando III, 212.310.8064)

Economists (Anjali Srinivasan, 415.391.5400)

Equal Protection Constitutional Law Scholars Serena Mayeri, Melissa Murray, and Reva Siegel (Roberta A. Kaplan, 212.763.0883)

European Law Professors (Simon Arthur Steel, 202.977.6249)

Experts, Researchers, and Advocates Opposing the Criminalization of People Who Have Abortions (Farah Christina Diaz-Tello, 347.974.7337)

Feminist Majority Foundation, Abortion Access Front,

C.A. Goldberg, PLLC, the National Organization for Women Foundation, the Southern Poverty Law Center, We Engage, Professor David S. Cohen, and Krysten Connon (John Edward Hall, 202.662.6000)

Freedom from Religion Foundation, Center for Inquiry, and American Atheists (Rebecca Susan Markert, 608.256.8900)

Howard University School of Law Human and Civil Rights Clinic (Tiffany Regina Wright, 202.643.7204)

Human Rights Watch, Global Justice Center, and Amnesty International (Xiao Wang, 312.503.1486)

International and Comparative Legal Scholars (Shannon Rose Selden, 212.909.6000)

International Federation of Gynecology and Obstetrics (Adam Scott Gershenson, 617.937.2379)

LGBTQ Organizations (Deanne Elizabeth Maynard, 202.887.8740)

Lawyers’ Committee for Civil Rights Under Law, et al. (Jon M. Greenbaum, 202.662.8315)

Legal Voice, Asian Pacific Institute on Gender-Based Violence, et at. (Kim Christensen Clark, 602.625.8896)

Local Governments (Jonathan B. Miller, 646.831.6113)

National Advocates for Pregnant Women, et al. (Lynn Mara Paltrow, 212.255.9252)

National Asian Pacific American Women’s Forum, Asian Americans Advancing Justice | AAJC, and Organizations Representing the Interests of Asian American and Pacific Islander Women (Robert M. Palumbos, 215.979.1000)

National Women’s Law Center and 72 Additional Organizations Committed to Gender Equality (Heather Dorothy Shumaker, 202.588.5180)

Organizations Dedicated to the Fight for Reproductive Justice—Mississippi in Action, et al. (Jessica Ring Amunson, 202.639.6023)

Organizations of Women Lawyers—Women Lawyers on Guard Inc., Women’s Bar Association of the District of Columbia, and National Association of Women Lawyers, et al. (Mia Tobin Guizzetti Hayes, 202.303.1197)

Over 500 Women Athletes, the Women’s National Basketball Players Association, et al. (David A. Barrett, 212.446.2300)

Reproductive Justice Scholars (Gary N. Frischling, 424.386.4316)

Scholars of Court Procedure (Anna-Rose Mathieson, 415.649.6700)

Scott Pyles (Gary Scott Pyles, 815.342.2856)

Social Science Experts (Leah R. Bruno, 312.876.8000)

Society for Maternal-Fetal Medicine, Royal College of Obstetricians and Gynaecologists, U.S. Association for the Study of Pain, and 27 Scientific and Medical Experts (Janice Marie Mac Avoy, 212.859.8182)

United Nations Mandate Holders (Emma Lindsay, 212.848.9883)

United States (Elizabeth B. Prelogar, Solicitor General, 202.514.2217)

YWCA USA, Girls Inc., Supermajority Education Fund, and United State of Women (Angela C. Vigil, 305.789.8904)

Yale Law School Information Society Project (Priscilla J. Smith, 347.262.5177)

In Support of Neither Party

Biologists (Lynn Downey Dowd, 630.665.7851)

European Legal Scholars (Brian James Field, 202.787.1060)

Mary Kay Bacallao Advocating for Unborn Children as Persons (George Lester Lyon Jr., 202.669.0442)