Introduction
In 2018, Mississippi passed a so-called Gestational Age Act, a law, which prohibits abortions after 15 weeks of gestational age unless there’s a medical emergency or severe fetal abnormality. The Courts line for the last fifty years has been that the right to pre-viability abortion must be guaranteed. The issue lies in the word “viability” – at what age is a fetus viable and can woman’s right to abortion be based on that?
Whether the Gestational Age Act is unconstitutional or not has not yet been settled. Case Dobbs v. Jackson Women’s Health Organization is pending in the U.S. Supreme Court. The petitioner as well as the respondent hold on to their arguments which consist of several precedents. One of the most important precedents the respondent, Jackson Women’s Health Organization, cites, is Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992).
Case analysis
In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed that a state cannot prohibit pre-viability abortions since the state’s interests aren’t strong enough in the pre-viability state compared to women’s rights. This particular case is seen as a “landmark case” when it comes to abortion regulation. As mentioned before, the issue lies in the word viability; for over fifty years the Court has ruled that it is unconstitutional to ban abortions before viability. The respondent in the pending case, Dobbs v. Jackson Women’s Health Organization, puts a great emphasis on this matter. Respondent, Jackson Women’s Health Organization, claims that the state’s interests before viability “cannot override a pregnant person’s interests in their liberty and autonomy over their own body”. Problem seems to be the different interpretations on when the fetus is viable or would be able survive outside the womb – with or without medical assistance. The Court has taken a stand on this issue also in Casey, where it reaffirmed the constitutional importance of viability and described the line between non-viable and viable fetus as follows: “it is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of the state protection that now overrides the rights of the woman”. The way I see it, the meaning and significance of the “viability line” seems to be clear yet it’s unclear where to draw the line.
Handling of the Planned Parenthood of Southeastern Pennsylvania v. Casey by the litigants in Dobbs v. Jackson Women’s Health Organization
This case seems to be significant especially to the respondent. Their main arguments are based on this precedent already in the ‘questions’ section in the brief of opposition. The petitioner also cites Casey through its petition for a writ of certiorari but doesn’t build its argumentation on that. What’s interesting to me is that the respondent, Jackson Women’s Health Organization, sticks to the “viability rule” reaffirmed in Casey while the petitioner, Dobbs, is questioning whether the right to abortion can be based on viability at all. According to Dobbs, “viability is not an appropriate standard for assessing the constitutionality of a law regulating abortion”. Petitioner asks if the validity of Gestational Age Act should be considered under Casey’s “undue burden” standard or Hellerstedt’s balancing of benefits and burdens. As stated by the Court in Casey, undue burden exists if a laws purpose or effect is to set significant obstacles for woman trying to get abortion. Question is, does the Gestational Age Act set significant obstacle for getting abortion or not?
Conclusion
The question in the pending case, Dobbs v. Jackson Women’s Health Organizations, revolves mainly around viability and its importance. Since the right to pre-viability abortions has been reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, which is seen as a landmark case, it’s obvious that its importance is significant. Although the petitioner and the respondent represent different point of views, they both cite Casey. Casey is in many ways setting a framework for findings in Dobbs v. Jackson Women’s Health Organization. It will be interesting to see whether the Court will hold its previous view or change its opinion.
V.N.B.A