Withers public international law team comments on the oral argument heard by United States Supreme Court in Dobbs v. Jackson Women's Health Organization

On December 1, the United States Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health Organization, a case that threatens to bring an end to the nearly 50-year-old Roe v. Wade precedent. This case involves a Mississippi law that bans almost all abortions over 15 weeks gestational age, which clearly runs afoul of the precedent established in Roe, and affirmed in Planned Parenthood v. Casey, that states may not place any pre-viability restrictions on abortion access.

Withers filed an amicus curiae brief on behalf of the UN Special Rapporteur on the Right to Health and other UN mandate holders in support of the Respondents—the only licensed abortion provider in Mississippi and one of its doctors—arguing that Mississippi’s abortion ban breaches the United States’ international human rights obligations, including the right to equality and freedom from non-discrimination, the right to privacy, the right to life, the right to health, and the right to be free from torture and cruel, inhuman or degrading treatment.

If the Court were to overturn Roe and Casey, more than half of US states are poised to substantially restrict abortion access within their borders. During the oral argument, counsel for Respondents argued that such a decision would deprive women throughout the United States of their constitutional rights of bodily autonomy, liberty, and the ability to make decisions relating to family and childbearing, and disparately impact women located in states that decide to make pre-viability abortion illegal. Further, this law, which seeks to overrule a half-century of precedent, challenges the principle of stare decisis and the Court’s status as an judicial body independent of politics. Petitioners posited that Roe was wrongly decided and must be overruled, while Respondents emphasized the importance of upholding the line drawn in Roe and Casey and following prior precedent absent any significant change in facts or science.

During oral argument, Justice Breyer remarked on the significance of the Court’s rationale if it is to overrule ”watershed” precedent such as Roe stating that “only the most convincing justification can show that a later decision was anything but a surrender to political pressures or new members.” Justice Sotomayor questioned Petitioners’ counsel along similar lines and asked whether the Court’s public perception would “survive the stench” of overturning Roe in a seemingly political act. Justice Kagan aligned with Justices Breyer and Sotomayor, pointing out that the Court should not be a political institution that will go back and forth depending on “what part of the public yells the loudest.”

However, many of the other Justices, constituting a majority of the nine-member court, appeared ready to consider overturning Roe. Chief Justice Roberts showed some surprising hostility to the existing precedent.

Mississippi’s abortion ban violates legal norms both within the United States and the broader international community. As set forth in Withers’ amicus curiae brief, the Mississippi law violates international human rights, and represents a retrogression of human rights that have been established in international law for decades. In response to a question from Chief Justice Roberts, Respondents’ counsel pointed out that Canada, Great Britain and most of Europe allow access to abortion right up until viability, and this substantial move backwards in the United States would violate these legal norms recognized by the international community and ultimately deprive women of long-standing rights.

Based on the questions asked by a majority of Justices during oral argument, many legal commentators believe that the Court is prepared to strike down or significantly abridge Roe and Casey. The Court’s decision is not expected until the end of the Supreme Court’s term in early summer of 2022.

The Withers team behind the amicus curiae brief is led by Partner Emma Lindsay and includes Senior Associates Jovana Crncevic, Camilla Gambarini, Joseph Gallo, Associates Tyler Goss, and HG Song, Trainee Giverny McAndry, and Paralegals Daniela Dimitriu and Lalindra Sanichar.

Withers’ prior insight on the Dobbs case is available here.