The Supreme Court begins its annual term on October 4, 2021, with a busy schedule highlighted by three allegations of constitutional rights violations. One concerns religious rights. A second concerns gun rights.
And the most important case this year is a challenge to abortion rights. Several states are asking judges to reconsider Roe v. Wade – the landmark 1973 decision that established the constitutional right for a woman to terminate a pregnancy, regardless of the moral beliefs of other citizens.
The case is Dobbs v. Jackson Women’s Health. The Mississippi legislature passed the Gestational Age Act in 2018, banning abortions after 15 weeks. The law has been challenged and is currently on hiatus until the Supreme Court hears arguments on December 1, with a ruling expected by June 2022.
Since 1973, the Supreme Court has recognized a fundamental right for a woman to make her own decision regarding motherhood, up to the point of viability – when the fetus can survive on its own outside the womb, which is about 24 weeks. . gestation.
However, several states have passed laws intentionally challenging Roe’s constitutionality by lowering the threshold to 15 weeks, as in Mississippi, or to six weeks, as in Texas. Republican legislatures in those states are hopeful that a more conservative Supreme Court will overturn or change the 1973 ruling.
Public opinion on abortion has remained remarkably stable in an era of political polarization. From the 1970s until today, about 20% of Americans have always believed that abortion should be illegal under all circumstances. Another slightly larger group felt that this should be legal under all circumstances. And the largest group of Americans – around 50% – favored legal availability with some restrictions.
The central legal question since 1973 – and particularly with the case in court – has been what kind of restrictions should be allowed.
Judges will consider the long-standing debate over whether the Constitution protects the right to choose, or whether abortion falls within the realm of rights and squarely under majority rule to be decided by ordinary legislation.
But there is also a second question addressed in Roe, which is more often overlooked: whether a fetus is a person who also has rights, or on the contrary whether a fetus is an aspect of the pregnant woman, whose rights are predominant. The Constitution gives no guidance on this second critical issue, which is at the heart of the Mississippi affair.
The court ruled in 1973 that the personality does not emerge at conception or wait for birth, but emerges during pregnancy at the point of viability. Therefore, according to Roe, states could ban abortion after 24 weeks, but not before.
As an observer of constitutional policy, I suspect that if the court ruled on this issue for the first time, probably six of the judges would argue that the Constitution contains no specific rights to abortion, leaving that decision to each state. . They may also believe that decisions about personality emergence, and therefore when abortion might be limited, are best left to individual states.
But Roe has been around for almost 50 years and is often seen as a “super precedent,” with even more force than other long-standing rulings. Chief Justice John Roberts has shown great esteem for precedent, while some of the more conservative judges like Samuel Alito and Clarence Thomas believe precedent is no reason to extend what they believe to be a mistake. It’s hard to predict whether the court will leave Roe alone, overturn Roe entirely, or uphold the principle of abortion rights while allowing states to lower the fetal personality threshold from 24 weeks to 15 weeks – or less – is. difficult to predict.
The court first recognized a fundamental right of citizens to bear arms for their personal protection in landmark DC v. Heller in 2008 and MacDonald v. Chicago in 2010. What has not been decided is how far the right extends outside the home. Can local governments limit the right to the protection of the home alone, or do citizens have a broader right to carry concealed weapons when in society?
In New York Rifle & Pistol Association v. Bruen, the Complainants argue that the Second Amendment requires something more than the current practice of limiting concealed firearms licenses to rare circumstances. Technically, a private citizen can get a permit, but the strict requirements in New York City mean that in practice hardly any permits are issued.
In the complainants’ view, a rule requiring “good cause” for granting a license – such as being in imminent danger from a known source – limits the right to select persons, rather than applying the Bill of Rights to persons. ordinary. The court will have to draw the lines as to where and to whom the Second Amendment extends.
A clear trend on the current court is towards greater protection of religious freedom. This dates back to the controversial Hobby Lobby decision in 2014, which allowed religious companies to seek exemption from healthcare laws they say violate their beliefs. More recently, in Fulton v. Philadelphia in June 2020, the court ruled in favor of a religious charity that had been excluded from the City of Philadelphia’s adoption programs because the organization refused to serve same-sex couples who wished to adopt or foster. a child. .
Many of the recent rulings expanding religious freedom have been decided 7-2 or even 9-0 among judges, with only the two most liberal judges, Ruth Bader Ginsburg and Sonia Sotomayor, sometimes dissenting. Now Sotomayor is alone in decisions that would go to 8-1, or, with the two more moderate Liberals also dissenting, 6-3.
However, when religion meets public education, the division on the ground becomes more dramatic between conservatives and liberals. In 2020, five judges overturned the exclusion of a US $ 150 private school tuition tax credit when applied to a religious school, saying that if a state offers a benefit regarding schools private secularists, he cannot deny the same opportunities to parents who choose religion schools. Four justices dissented on the grounds that any funding benefiting religious schools violates the First Amendment by creating an unacceptable entanglement between government and religion.
This year, the court must decide whether the same principle applied in the award decision applies on a larger scale. The state of Maine, where many communities do not have local public schools, reimburses the tuition fees of a student to attend private schools. But it doesn’t pay the same tuition fees for private religious schools.
In Carson v. Makin, the court will determine whether a state can deny a public benefit on the basis that it will be used to pay for explicit religious instruction, or whether the First Amendment requires fully equal financial treatment for private religious and secular schools.
In each of these three major cases, a court now dominated by the Conservatives – especially after the death of Judge Ruth Bader Ginsburg, who was replaced by Amy Coney Barrett – could shift U.S. constitutional law in a new direction.