Which of the four directions the U.S. Supreme Court takes on Dobbs v. Jackson Women’s Health Organization will determine what abortion law will look like in Louisiana, with the odds heavily favoring a coming change.
The Court heard this case earlier this week, concerning a Mississippi law that prohibits abortion after 15 weeks from conception. This runs counter to court precedents Roe v. Wade that continued into Planned Parenthood v. Casey that set a limit of 24 weeks. The Court likely will announce a decision prior to the end of June, 2022.
The least likely outcome would be to follow the Fifth Circuit Court’s ruling that the precedents definitively discovered a “right to privacy” in the Constitution that creates a right to abortion prior to “viability” of the preborn, and that the dividing line resides at 24 weeks. This logic roundly has drawn criticism for its utter disregard for what the Constitution says and how its defenders have to torture the document to get there. The composition of the Court at present suggests a majority willing to set aside decisions bereft of constitutional anchoring.
But if the Court wants to keep that concept around, it can supplement it with a right to life but defined by “viability.” It is a ridiculously arbitrary and misconstrued standard; you can argue convincingly that no human being is “viable” for years after birth because they can’t fend for themselves to stay alive, but if the Court lets politics creep into the process, it could try to halve the baby by declaring a right to abortion up to viability and a right to life afterwards, with viability something like the earliest age after conception for survival outside the womb.
Naturally, this sets up a moving target, but always heading downwards that may end abortion in the decades to come. For example, what if in the future artificial wombs essentially could operate by technicians plucking the preborn right after conception and carrying him all the way through term? The Court then would be in the business of periodically lowering the cutoff as technology advanced.
The other extreme not only would invalidate any thought of a right to abortion, but also would affirm a right to life in the Constitution. Two schools of thought would justify it, although one would be only somewhat less nebulous that the manufactured right to privacy: a natural law interpretation that the right exists as part of a larger ethos explaining the Constitution’s being. The alternative derives from the Fourteenth Amendment and its promise that the state shall not deprive a “person” of life, leaving it up to the Court to find a way to extend personhood to preborn human beings up to the moment of conception. The two approaches here mesh somewhat as natural law reasoning may accomplish that latter task.
Yet the Court, perhaps on its most solid constitutional grounds in fealty to what the document actually reads, also may try to straddle the issue by declaring the Constitution guarantees no right to life for the unborn but no right to abortion, either, instead referring directly to the interpretation from the parchment’s beginning that states regulate health and safety matters. Thus, unlike the other approaches, this reads out any constitutional rights specific to the issue.
Assuming the Court doesn’t maintain the status quo, Louisiana has two laws on the books that can accommodate these differing outcomes. Act 468 of 2018 essentially mimics the Mississippi law under question and has a trigger saying if that withstands Court scrutiny it becomes law. But it also wipes out that language if the Court decides the Constitution doesn’t address the issue, creating a prohibition against abortion except when the life or physical health of the mother is endangered.
Off to the side, Act 31 of 2019 prohibits abortion upon detection of a fetal heartbeat except in the case of threat to the mother’s life and physical health or medically futile pregnancies. This means disallowing abortion legally after as early as six weeks gestation.
Act 468 mainly drives the future of the state’s jurisprudence on the issue. If the Court continues with a viability standard, note that at the time of Roe’s promulgation of a 24-week cutoff 28 weeks was considered the standard; now, survivors have fallen below 22 weeks. Dropping the line from 21 to 15 weeks doesn’t seem that radical.
It certainly isn’t in the rest of the world. Three-quarters of the world’s nations, including most of Western Europe, ban abortion after 12 weeks, while only seven nations in the entire world, including the U.S., currently permit elective abortions after 20 weeks of gestation. If the Court sticks with a viability standard and at greater than 15 weeks, then it cancels this law
However, should the Court say the Constitution leaves matters in the hands of states, almost all abortions become outlawed in Louisiana. Basically, the same thing happens if the Court replaces a construed right to abortion with a right to life, as that would override state statute. Act 31 would come into play only if the Court enters the thicket of personhood, such as by declaring the preborn have that upon heartbeat detection.
Thus, when this decision comes down, likely abortion can occur in Louisiana only in a shorter and earlier timeframe after gestation, anywhere from just 15-23 weeks out, perhaps solely up to six weeks out, or it almost always will be outlawed. From a philosophical standpoint, preferably the coming jurisprudence would attune more to the Constitution’s actual meaning by jettisoning the viability chimera and any constitutional rights claim, and from a moral standpoint introducing personhood standards probably would maximize saving lives, but even a reduced window for legal abortion improves on the current indefensible situation.