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Is It Finally Curtains for Roe?

1 16 4
09.09.2021

The new Supreme Court term is about to begin, and it promises to be a blockbuster. With cases involving abortion and guns already on the docket, and the possibility that an affirmative action case may be added as well, this term will present the court’s new six-member conservative supermajority with the opportunity to usher in major shifts in the law. What the justices do with those opportunities will be a test of their commitment to precedent and, for many of them, their self-professed commitment to originalism.

Perhaps the biggest issue on the court’s docket this term will be abortion. A little over a year ago, in a case called June Medical Services LLC v. Russo, the Supreme Court gave abortion rights advocates a win when it held unconstitutional a Louisiana law that required physicians who perform abortions to have admitting privileges at a nearby hospital. In his opinion concurring in the ruling, with which he joined the court’s (then) four liberal members, Chief Justice John Roberts extolled the importance of precedent, observing that “for precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly.” Because the Louisiana law was identical to a Texas law the court had previously struck down, the chief justice voted to strike down the Louisiana law.

But with the replacement of Justice Ruth Bader Ginsburg by Justice Amy Coney Barrett, the chief justice’s vote will not be dispositive when the court hears Dobbs v. Jackson Women’s Health Organization this term. In Dobbs, the court will be considering a challenge to the constitutionality of a Mississippi law that, with limited exceptions, bans abortions after the fifteenth week of pregnancy. The lower courts rightly concluded that this pre-viability ban on abortion was unconstitutional under the Supreme Court’s precedents, and Mississippi now asks the court to overrule those precedents.

According to Monica Simpson, executive director of SisterSong, a Southern-based, national reproductive justice organization that works to improve policies that affect the reproductive lives of women of color, “If the Supreme Court decides to overturn ... precedent under Roe v. Wade, the consequences will be devastating for communities like mine in........

© New Republic


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