The recent, leaked draft abortion opinion undoubtedly brings internal harm to the U.S. Supreme Court and external harm to its legitimacy in the public’s eyes. But it’s fair to remember that some of that harm is self-inflicted.
Take a step back to June 5, 2020. That’s the date that Mississippi’s abortion challenge was filed in the high court. In the case, Dobbs v. Jackson Women’s Health Organization, the state of Mississippi asked the justices to decide three questions, none of which urged the overruling of the landmark abortion rights decisions, Roe v. Wade and Planned Parenthood v. Casey.
The primary question of the three was whether all pre-viability bans on elective abortions are unconstitutional. Mississippi wanted the court to uphold its state ban on abortions after 15 weeks of pregnancy.
“To be clear, the questions presented in this petition do not require the court to overturn Roe or Casey,” the state wrote. “They merely ask the Court to reconcile a conflict in its own precedents.” That conflict, in the state’s opinion, was over what test to apply when analyzing the validity of a pre-viability ban.
The two lower courts to analyze the Mississippi ban had no difficulty applying the justices’ precedents. Like courts around the country, they ruled that the justices’ precedents created a “categorical right to a pre-viability abortion” and the 15-week law violated that right.
Fetal viability, which generally is considered 22-24 weeks, is the line drawn by the justices in their abortion decisions. States may regulate pre-viability abortions, but they cannot ban them and they cannot “unduly burden” a woman’s access to abortion.
Jackson Women’s Health Organization filed its brief opposing high court review of the Mississippi petition on July 20, 2020. And then nothing happened for the next 10 months. Well, almost nothing.
Justice Amy Coney Barrett assumed her seat on Oct. 27, 2020.
And the Mississippi case was distributed for the justices’ private conference 22 times, of which it had been rescheduled nine times. That is a significant number of redistributions. It often means that a justice may be writing a dissent to a denial of review, or perhaps four justices (the number needed to grant review) aren’t sure they can get a fifth justice on a final ruling and they are delaying action in hopes that a fifth justice will be found.
The delay ended when the justices, with no comments, granted review of the state’s case on May 17, 2021, nearly a year after the case had been filed. They limited their review to the question of whether pre-viability abortion bans are unconstitutional.
The grant of review was unusual because there was no conflict in the lower appellate courts—a major factor for granting review—and the issue was not of imminent national importance—another factor.
On July 22, 2021, the state filed its brief on the merits and argued for the first time that Roe and Casey should be overruled.
Taking the Mississippi case when it was not necessary was the first act of self-inflicted harm. A second was to follow soon after.
A month later, on Aug. 30, 2021, Whole Woman’s Health, a Texas abortion provider, filed an emergency application in the court. Whole Woman’s Health wanted the justices to temporarily block Texas’ ban on abortions after six weeks of pregnancy from taking effect while its challenge to the law proceeded in the lower courts.
Two days later, a 5-4 conservative majority denied the application. The Texas law has been in effect ever since.
Regardless of positions on abortion, the majority’s act was stunning. It allowed a clearly unconstitutional law to take effect and deprive a significant number of citizens of a constitutional right.
Cynics could easily believe that the majority acted because it had an agenda. The five justices knew they would overturn Roe and Casey using the Mississippi case that they had granted just three months earlier.
This is, of course, all about appearances. We probably won’t know for many years what was happening behind the court’s closed doors as the justices discussed the Mississippi and Texas cases.
But appearances count when the public weighs the court’s legitimacy. The leaked draft opinion makes the court appear to be politically riven and driven, just another dysfunctional institution in our government. Three of the five justices allegedly signing onto the draft opinion overruling Roe were appointed by former President Donald Trump who vowed to appoint justices who would do exactly that and do it quickly. It appears that he has succeeded.
The Supreme Court has weathered crises before in its history, and time may help it weather this one too. The only question is how much damage the institution—its credibility and legitimacy—suffer in the interim.
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
