As Abortion Case Looms, Biden's Possible Court-Packing Commission Meets
On Monday, the Supreme Court agreed to review the case of Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., v. Jackson Women’s Health Organization, et al.
Dobbs, representing the state of Mississippi, is appealing a December 2019 decision of the U.S. Court of Appeals for the Fifth Circuit.
Mississippi passed a law in 2018 which banned abortions after 15 weeks of pregnancy. The Jackson Women’s Health Organization, the state’s sole abortion provider, filed a lawsuit claiming this law was unconstitutional.
“Two lower courts agreed, saying an unbroken line of Supreme Court rulings dating back to Roe established that states can regulate — but not outright ban — the procedure in the pre-viability months of pregnancy,” The Wall Street Journal reported.
University of Chicago law professor Geoffrey Stone, whom WSJ considers an expert on the Supreme Court’s history of abortion rulings, said, “The fact that the justices decided to take the case indicates a willingness of at least five of them to revisit existing precedent. The only reason to hear the case would be to do that.”
The outlet summarized Stone’s explanation that if the state prevails, “the Supreme Court would be allowing states more room to regulate abortion than at any time since Roe. The court wouldn’t have to explicitly overturn Roe and other precedents, but any ruling for the state would put significant limits on abortion rights.”
The Court will review the case in its next term which begins in October, according to the report.
This news has Republicans feeling optimistic and Democrats worried about the fate of the watershed decision in the 1973 Roe v. Wade case, which gave women the right to have an abortion.
A statement appearing on the Court’s Twitter page read, “BREAKING: The Supreme Court agrees to take up a major abortion case that will give the court an opportunity to reconsider Roe v. Wade and Planned Parenthood v. Casey. The case involves the constitutionality of Mississippi’s ban on most abortions after 15 weeks of pregnancy.”
BREAKING: The Supreme Court agrees to take up a major abortion case that will give the court an opportunity to reconsider Roe v. Wade and Planned Parenthood v. Casey. The case involves the constitutionality of Mississippi’s ban on most abortions after 15 weeks of pregnancy.
— SCOTUSblog (@SCOTUSblog) May 17, 2021
Republican Sen. Steve Daines of Montana was pleased with this news and in a Twitter post, he wrote, “Every life is precious and must be protected. Since Roe v. Wade was wrongly decided, more than 62 million children have been the tragic victims of abortion. It’s long past time for the Supreme Court to right this wrong and I’m glad to see the Court take up this case.”
The American Civil Liberties Union, however, warned liberals that abortion rights are under attack.
The Supreme Court decided to grant Jackson Women’s Health Organization v. Dobbs, which means they will consider a Mississippi abortion ban.
We don’t want to downplay this: Abortion rights are under attack and the case is directly challenging Roe v. Wade.
— ACLU (@ACLU) May 17, 2021
California Rep. Eric Swalwell, a Democrat, similarly found it alarming that the Supreme Court would agree to review an abortion ban.
The consequences of a Roe reversal would be disastrous. Weakening or overturning Roe poses a threat to our fundamental rights to make personal decisions beyond abortion & it’s alarming that the Supreme Court has agreed to review an abortion ban.
— Rep. Eric Swalwell (@RepSwalwell) May 17, 2021
Obviously concerned about the possibility of Roe v. Wade being weakened or even overturned, it didn’t take long for President Joe Biden’s “Presidential Commission on the Supreme Court of the United States” to spring into action.
In early April, Biden signed an executive order to form this group of bipartisan legal experts to analyze the pros and cons of Supreme Court reform. The White House website stated this would include “an appraisal of the merits and legality of particular reform proposals,” i.e. packing the court.
According to the executive order, “the Commission [must] complete its report within 180 days of its first public meeting.”
On Monday, after hearing that the Supreme Court would review an abortion case, the commission set up its first meeting for Wednesday, according to Reuters. This would mean that its final report would be due by mid-November, around the time the Supreme Court should be reviewing Dobbs v. Jackson. Hmm.
At any rate, a week after Biden set up this commission, Democratic lawmakers Sen. Ed Markey of Massachusetts and Rep. Mondaire Jones of New York introduced the Judiciary Act of 2021. This legislation would add four justices to the Court, bringing the total number of justices to 13.
At the time this bill was introduced, Democratic House Speaker Nancy Pelosi said, “I have no intention to bring it to the floor,” according to Politico. But she didn’t close the door on it either. She told reporters, “I don’t know that that’s a good idea or a bad idea. I think it’s an idea that should be considered … It’s not out of the question.”
Even if it were to pass the House, however, it likely wouldn’t go far in the Senate. It’s a radical bill and it would be difficult to find the 60 votes required for passage.
Although there are five conservative justices (I don’t consider Chief Justice John Roberts to be a conservative), it’s a bit premature for Republicans to celebrate the overturning of Roe v. Wade.
As Fox News’ Tyler Olson wrote, “[M]any experts don’t see a completely definitive overturning of Roe v. Wade in the cards for the court next year. The justices often take a slower approach to turning around major precedents.”
“Some experts see the court’s eventual ruling on the Mississippi law as a possible first step toward overturning Roe — or a bellwether that the Republican justices may not plan to overturn it at all — depending on what exactly the court decides.”
The National Review’s Dan McLaughlin, an attorney, similarly wrote, “We shouldn’t expect Dobbs to be the case in which Roe falls. More likely, the Court could start cracking open the internal contradictions in its prior abortion jurisprudence, paving the way for more dramatic progress later — much in the way that the Court’s liberals used decisions striking down sodomy laws and the federal Defense of Marriage Act to lay the legal groundwork for overturning state bans on same-sex marriage.”
“If Chief Justice John Roberts and some of the other Republican appointees on the Court are not on board with that campaign, we will know from their opinions in Dobbs.”
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