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Scott Lemieux: The Future of Reproductive Rights in the U.S.

Submitted by Natalie Mc Martinez on January 3, 2022 - 1:00pm

Assistant Teaching Professor Scott Lemieux joined our department in 2019. Scott earned his Ph.D. from our department, was hired for a tenure track position at a northeastern liberal arts college, and then returned to Seattle in 2017 where he started teaching for us as a temporary lecturer. In 2019 Scott was hired in a competitive national search for a full-time lecturer. The UW has since converted lecture positions to Teaching Professor position to signal the importance of the work they do.

As an Assistant Teaching Professor, Scott teaches six courses per year ranging from large introductory American Politics courses to small upper division undergraduate Public Law seminars. Although Scott is not expected to conduct research as part of his job responsibilities, he remains an active scholar and prolific public scholar.  

Scott’s primary area of expertise is Public Law with particular attention to the U.S. Supreme Court. Because he has written widely on the subject of abortion politics, we thought it would be valuable to hear his expert perspective on the recent Supreme Court case of Dobbs v. Jackson Women’s Health Organization.

Scott, thank you for taking the time to speak with us. Before we get to the question that is on everyone’s mind, will you please explain the legal issue or issues in the Dobbs vs. Jackson case?

My pleasure! Dobbs is a lawsuit challenging the constitutionality of a new Mississippi law that bans all abortions after the 15th week of pregnancy. The Mississippi law is flatly inconsistent with the relevant legal precedents – Roe v. Wade and Planned Parenthood v. Casey – which held that bans of abortion prior to fetal viability are unconstitutional.

Now to the question on everyone’s mind, what do you think the Supreme Court will decide and why?

It is virtually certain that a majority of the Court will vote to uphold the Mississippi statute. The only real suspense is whether the Court will announce explicitly that Roe v. Wade has been overruled, or whether they will write a more minimalist decision that upholds the law without fully clarifying what standard should apply to more draconian bans. After listening to oral argument, I think the most likely outcome is that there will be a majority to explicitly overrule Roe, and permit both the state and federal governments to regulate or ban abortion however they wish.  

As a scholar of constitutional law, how do you think the court should decide this case and why?

As with most constitutional questions of any interest, there is no technical legal answer to the issues posed by this case, and reasonable people can disagree about the best outcome.  But for reasons I have explained at some length elsewhere, I think Roe was a sound decision and should be re-affirmed.  The rights to make intimate decisions regarding parenthood and sexuality are deeply embedded in the American constitutional tradition, and in my view the best reading is that these rights apply to the right to terminate a pregnancy before the fetus is viable, subject only to neutral regulations that would apply to any generally safe surgical procedure. 

I read recently that surveys indicate that 24% of US women report that they have had an abortion. In the event that the Mississippi law is upheld (and/or Roe v. Wade is overturned), what will be the legal, political and social impacts?

Evidently, if Roe is overruled or even severely curtailed, the impact in American society will be considerable, starting with the many people who will be forced to carry pregnancies to term as most Republican-controlled states act to ban most or all abortions. Nationally (although not necessarily in every state) Roe is popular and bans on pre-viability abortions are not. Abortion bans will be met with protest and resistance. There are also some signs that Democrats are beginning to view the Supreme Court less favorably, and the end of Roe will intensify unfavorable liberal views toward the Court.

Having said that, the political ramifications are hard to predict. Elections aren’t referenda on single issues. Outside of states where the party is already dominant, overruling Roe will probably be a net negative for the Republican Party. But I don’t think it will make the party suddenly uncompetitive either.  

I assume that Washington state will be one of the states where abortion remains legal?

Yes, at least insofar as the state government is considered. Access to pre-viability abortions are explicitly protected by statute, and this is unlikely to change for the foreseeable future. There is, however, an important caveat. Despite common claims that overruling Roe would merely “send the issue back to the states,” the next time Republicans control both houses of Congress and the White House they will try to pass national abortion restrictions, and they may well succeed. Supporters of reproductive rights in Washington should not be complacent.

Is there anything else you’d like to add?

I think it’s important to view Dobbs in the context of some larger issues pertaining to democratic (small d) legitimacy in America. There is an intuitively plausible argument that because there is strong public support for abortion rights in most jurisdictions, the impact of overruling Roe will generally be modest and limited to states where abortions can already be quite difficult to obtain. But an obvious problem with this analysis is that national swing states like Wisconsin, Pennsylvania, Michigan, and North Carolina have state legislatures so heavily gerrymandered in favor of the Republican Party that winning a single gubernatorial election could produce a ban on abortions that would be effectively impossible to repeal once implemented. For this reason, overruling Roe is likely to produce a much more restrictive legal environment for abortion rights than surveys of public opinion would lead us to expect.