The Supreme Court delayed consideration of a case that restricts abortion amid President Trump’s push to nominate a justice to fill a vacancy left by the late Justice Ruth Bader Ginsburg.
On Tuesday, the high court updated its docket in the case Thomas E. Dobbs v. Jackson Women’s Health Organization, which deals with a Mississippi law that prohibited abortions after 15 weeks gestational age with limited exceptions. It also addresses whether abortion providers have third-party standing to challenge laws or regulations that restrict abortion on behalf of women receiving an abortion.
In order for the Supreme Court to consider a case, at least four justices must agree to grant a writ of certiorari, or review of the case. According to the Administrative Office of the U.S. Courts, the Supreme Court “usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value.”
(apologies, docket was actually updated today, I have just forgotten what day it is)
— Lawrence Hurley (@lawrencehurley) September 22, 2020
In December 2019, the Fifth Circuit Court of Appeals affirmed a district court decision that found the Mississippi law unconstitutional, citing Supreme Court precedents on the issue since Roe v. Wade was decided in 1973.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban,” the decision reads. “Thus, we affirm the district court’s invalidation of the law, as well as its discovery rulings and its award of permanent injunctive relief.”
In 1992, the Supreme Court affirmed its decision to permit abortions in Planned Parenthood v. Casey but allowed states to regulate abortion services to protect the health of mothers and the lives of “viable” fetuses, a Latin term translating to “bringing forth of young.”
Republicans are pushing forward with a plan to vote on Trump’s forthcoming Supreme Court nominee, whom he said he will announce on Saturday, following Ginsburg’s death Friday after a battle with cancer. Trump has also said he will pick a woman for the high court. Federal judges Amy Coney Barrett and Barbara Lagoa are said to be top contenders.
Republican Sens. Lisa Murkowski and Susan Collins have both stated their opposition to voting on a Supreme Court nominee before the election, which is 41 days away as of Tuesday. Republicans control 53 seats in the Senate and would not have room for more than three defections within their party should a nominee be voted on and all Democrats resist the president’s selection. Vice President Mike Pence has the power to break a tied vote.
Democrats, including presidential nominee Joe Biden, have demanded Trump wait until there is a winner in the November election. Some have even suggested that if Republicans push through a nominee and the Democrats take control of Congress in November, they will vote to expand the Supreme Court.
Sen. Lindsey Graham, the chairman of the Senate Judiciary Committee, told Fox News host Sean Hannity that “we’ve got the votes to confirm the judge on the floor of the Senate before the election.”
