Yale Daily News

On Monday, the Yale Law School hosted a hybrid panel discussion on the upcoming Supreme Court case Dobbs v. Jackson Women’s Health Organization, a case that will determine the future of abortion rights in America. 

The speakers explained that the Dobbs case presents a challenge to the Court’s landmark Roe v. Wade case, which prohibited states from banning abortion outright in 1973. In the decades after Roe, many states passed laws restricting access to abortion. According to the speakers, Mississippi’s 2018 Gestational Age Act aimed to block nearly all abortions after the fifteenth week of pregnancy. Jackson Women’s Health Organization, the only remaining abortion clinic in Mississippi, has successfully barred the law’s enforcement through legal battles in federal courts. However, the panelists explained the Supreme Court’s decision to hear the Dobbs case gave Mississippi another chance to uphold the law.

The panel featured Hillary Schneller, senior staff attorney at the Center for Reproductive Rights and co-lead counsel on the case, Kimberly Mutcherson, dean and professor of law at Rutgers Law School and Yale Law School professor Reva Siegel ’78 GRD ’81 LAW ’86. Law School lecturer and senior research scholar Linda Greenhouse LAW ’78 moderated the discussion. While Schneller and Mutcherson tuned in via Zoom, Yale community members could join Siegel and Greenhouse in person at the Sterling Law Building. The event was co-sponsored by the Solomon Center for Health Law and Policy, the Program for the Study of Reproductive Justice and the Yale Health Law and Policy Society.

Panelists first discussed another abortion case, United States v. Texas, for which oral arguments will begin next week — following the Court’s decision to expedite the case. The case is centered around the Biden administration’s challenge to Texas’ Senate Bill 8, which blocks abortion after six weeks.

Schnell called the Court’s refusal to issue a stay for Texas’ Senate Bill, despite the fact that the case was fast-tracked, “horrific.”

“[The bill] is causing human rights abuses in Texas every single day it is in effect,” Schnell said. “The impact in Texas right now is an unfortunate — and really should be unnecessary — picture of what would happen if the Court were to overturn Roe, and to uphold the 15-week ban in Mississippi.”

Greenhouse raised the question of precedent, asking panelists whether it would be possible for the Court to uphold the Mississippi law without overturning Roe. 

Mutcherson said that while she previously believed that abortion rights would simply continue to narrow under state laws, the Texas case has prompted a change.

“Post-all of the S.B. 8 stuff that is happening, it’s starting to feel a lot more like the Court might actually overturn Roe,” Mutcherson said.

The panel then turned to the discussion of legal equality in abortion law. Siegel said that equal protections claims were common in arguments to decriminalize abortion pre-Roe, with advocates raising issues of race and class inequality in reproductive rights. The issues of sex-based discrimination and legal equality became more prominent in the law post-Roe, creating the question of discrimination based on pregnancy status. According to Siegel, the concept of pregnancy discrimination informed the amicus brief she filed for the Dobbs case along with fellow scholars Melissa Murray LAW ’02 and Serena Mayeri LAW ’01 GRD ’06.

Explaining the amicus, Siegel invoked the late Justice Ruth Bader Ginsburg’s opinion in the United States v. Virginia case, which included pregnancy discrimination as a form of sex discrimination.

“The law in Mississippi, in fact, is designed to expressly ‘protect the health of women,’ and it prohibits physicians from performing ‘an abortion’ on ‘a maternal patient’ after 15 weeks,” Siegel said. “We understand it to allocate health on the basis of pregnancy and sex… and we observed that once you apply the Virginia framework to this statute… every way in which it justifies its ends relies on sex discriminatory assumptions.”

Mutcherson added that intersectionality must stay at the forefront of abortion rights, and encouraged audience members to read Justice Sonia Sotomayor’s LAW ’79 previous opinions on the topic for more information.

As the conversation on legal equality continued, panelists discussed the concepts of fetal viability. According to Mutcherson, it was inevitable that attempts to apply medical science to abortion laws through trimester and viability markers “would fall apart,” as time-sensitive abortion restrictions have shifted around the country. Schneller concurred that fetal viability lines are only a compromise for reproductive rights activists, as lower courts have traditionally respected them in abortion rights litigation post-Roe.

As the discussion drew to a close, panelists fielded questions from attendees. One attendee asked about the next steps abortion rights advocates could take if the Supreme Court upholds the Texas law in the United States v. Texas case and the Mississippi law in Dobbs v. Jackson Women’s Health Organization.

“One of the things we’re seeing … is organizations that are really focusing, one, on state constitutions, and two, on state legislation, so getting these rights enshrined in the states even if the federal government fails us,” Mutcherson responded.

The Supreme Court will begin hearing oral arguments for Dobbs on Dec. 1.