Due to a leak in Dobbs v. Jackson Women’s Health Organization, a case challenging Mississippi’s prohibition of elective abortions after 15 weeks’ gestation, we now know that the Supreme Court stands poised to overturn Roe v. Wade and its follow-up case, Planned Parenthood v. Casey. But Chief Justice Roberts has reportedly not joined the opinion, and some speculate that he might try to recruit a colleague to a middle path—upholding Mississippi’s law without reversing Roe and Casey. So while others have focused on the leaked Dobbs opinion, a key question for Roe’s fate is whether that middle way exists.
It does not.
As recent legal scholarship shows, a Dobbs “middle ground” would actually destroy Casey and Roe in the name of preserving them. So the Court faces a binary choice: Strike down the Mississippi statute or overturn Roe.
Roe forbade restrictions—and Casey forbade “undue burdens”—on abortion before viability, when the unborn child becomes capable of surviving outside the womb. Since that happens at about 22 weeks at the earliest, both precedents forbid Mississippi’s 15-week ban.
At oral argument, the chief justice probed for a way around this conclusion. He floated the possibility of (1) ignoring the viability line and (2) holding that the Mississippi ban imposes no “undue burden” because it leaves enough time for pregnant women to decide to abort. And he suggested that perhaps neither step would contradict anything essential to Casey or Roe.
But in truth, Mississippi’s law cannot be squared with these precedents….
The above comes from a May 9 article by Princeton’s Robert George in First Things. The rest of the article gives good further detail on why Chief Justice Roberts can’t find a middle way.