SCOTUS case on MS abortion law has major implications for North Carolina

Thursday, December 2, 2021
SCOTUS case on abortion law has major implications for North Carolina
Wednesday's case before the U.S. Supreme Court is the most significant challenge to Roe v. Wade in 50 years.

RALEIGH, N.C. (WTVD) -- There is one point of agreement even among the most combative proponents of either side on abortion law: Wednesday's case before the U.S. Supreme Court is the most significant challenge to Roe v. Wade in 50 years.

"For me it's all about abortion bans, like the one in Mississippi, and that's all about control," Rep. Julie von Haefan (D-Wake County) said. "It's about control over women and over our bodies because we know abortion is health care."

Von Haefan and Raleigh activist Faisal Khan spoke to ABC11 from the steps of the U.S. Supreme Court building in Washington D.C. where thousands of people gathered to either show support for abortion rights or oppose them. The court heard oral arguments in Dobbs v. Jackson Women's Health Organization on Wednesday, which scrutinizes a new Mississippi law banning abortions after 15 weeks of pregnancy.

"This is probably the most anti-abortion Supreme Court we've had," von Haefan said, referring to the court's 6-3 conservative makeup. "There's a real threat to Roe based on the case being heard today, and that's why it's so important for us to be here today."

"I have a mother, I have a sister, I have a daughter," Khan, the executive director of the Carolina Peace Center, added. "I'm standing beside a wonderful lady representative from North Carolina and so many other women. They have a right to choose. We don't have a right to tell them how they should live their life."

The "Viability" and "Undue Burden" standards

The landmark case Roe vs Wade in 1972 gave women in the United States the legal right to an abortion for the first time. The monumental decision cited Section 1 of the 14th Amendment to the U.S. Constitution:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The court, also citing precedent, said the Constitution's implied right to privacy is the basis for the principle of a woman's right to choose.

"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy," Justice Harry Blackmun wrote for the majority.

The decision, however, also included this important caveat: "We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation... The pregnant woman cannot be isolated in her privacy."

The court, thus, divided pregnancies into trimesters and generally gave states the ability to impose some restrictions during the later stages of pregnancy.

Twenty years after the Roe decision, lawmakers in Pennsylvania did just that-- but the action provoked another key case where the Supreme Court would again insert itself into the fray and try to spell out further details on what is Constitutional and what isn't.

In 1992's Casey vs. Planned Parenthood, the court reaffirmed Roe, but clarified the position that restrictions on abortion are permissible only after the fetus' viability, or when the fetus is able to survive in the case of a premature birth.

"The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade," Justices Sandra Day O'Connor, David Souter and Anthony Kennedy wrote in a joint opinion. "It is a rule of law and a component of liberty we cannot renounce."

The court then further solidified the "viability standard" while also adding a new "undue burden" standard: "An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability."

President Trump's SCOTUS mark

Dozens of subsequent cases challenging the Roe and Casey decisions would fail in lower courts and would often never even reach the Supreme Court. Even in North Carolina, a 2019 effort by the Republican-led General Assembly to restrict abortions at 20 weeks was struck down.

President Donald Trump, however, nominated three justices to the Supreme Court, which dramatically tipped the balance of the court to the right and gave conservatives new hope that Roe and Casey might be revisited.

"Amy Coney Barrett and Brett Kavanaugh are the justices to watch," Devin Dwyer, ABC News' senior Washington reporter, said. "We know both of them are not fond of abortion in their private lives as Catholics, but they haven't written much legally about the issue of abortion."

Neil Gorsuch, Trump's first nominee to be confirmed, is widely considered a court "originalist" akin to the late Justice Antonin Scalia, who vehemently opposed the Constitution's role in governing abortions.

The Mississippi law in Dobbs, which restricts abortions at 15 weeks is clearly against the precedent of Roeand Casey, but by taking the case, Dwyer said there's no doubt the court wants to revisit whether those decisions should remain applicable.

"On its most basic level with this Supreme Court case, the stakes in this case for a state like North Carolina are quite significant. This could decide whether legislators in North Carolina or any other state can have more power to restrict abortion. This is a case about where states can draw the line, each one having the chance to draw its own line."

Indeed, Chief Justice John Roberts has been known to prioritize precedent and consensus in court decisions, however analysts on both sides recognize there is almost no room for middle ground in the Dobbs case.

"I think it's pretty clear that the more liberal justices on the Court are going to be trying to retain Roe and Casey in its present form," Beth Scherer, an appellate attorney in North Carolina, said. "(Justice) Clarence Thomas has said that he would reconsider these abortion precedents. He doesn't believe there is a right to an abortion and he believes that precedent notwithstanding, the Supreme Court needs to get out of the abortion debate and leave it to the states."

According to Scherer, a decision that guts Roe and Casey does not on its surface make abortion illegal in the United States.

"The first thing to know is that things are probably not going to change radically overnight no matter what happens because most abortions do occur in the first 15 weeks," Scherer said. "So no matter what happens in the court, the current laws will allow abortions here in North Carolina and, ultimately, depending on what the Supreme Court does, I think the power will be going more to the General Assembly."

Of course, much like in 1992, the court could also surprise everyone and impose its own new standards.

"We moved from the trimester framework to the viability framework, and again, the question has always been, where do we draw these lines?"

Majorities of Americans support the Supreme Court upholding Roe v. Wade and oppose states making it harder for abortion clinics to operate, according to an ABC News/Washington Post poll this month. Three in four Americans, including majorities of Republicans, independents and Democrats, said the decision of whether or not to have an abortion should be left to a woman and her doctor.

Americans, though, appear more sharply divided on the type of ban at issue in Mississippi. A Marquette University Law School poll this month found 37% favored upholding a 15-week ban, with 32% opposed.

In North Carolina, there are 13 clinics offering abortion services across the state. The latest data from the North Carolina Department of Health and Human Services reported nearly 23,500 abortions in 2019, about 16% of all reported pregnancies.