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In-Depth: How Supreme Court abortion rights case could impact California

San Diego legal experts discuss impact of decision
Posted at 6:04 AM, Oct 07, 2021
and last updated 2021-10-07 11:43:47-04

SAN DIEGO (KGTV) - Legal experts in San Diego say an upcoming Supreme Court case on abortion rights could impact California.

On Dec. 1, the U.S. Supreme Court will hear arguments in the Dobbs vs. Jackson Women's Health case from Mississippi. The case challenges Mississippi's 2018 ban on abortions after the 15th week of pregnancy. Earlier decisions from lower courts have already tried to overturn the law.

The filing with the Supreme Court asks the justices to uphold the law and review other abortion rights cases like Roe vs. Wade and Casey vs. Planned Parenthood.

According to San Diego-area legal experts, the Supreme Court has several options in the Dobbs case. They could agree with the lower courts and strike down the Mississippi ban. They could also uphold the Mississippi ban but leave the other cases as settled precedent. Or they could decide to overturn Roe vs. Wade and Casey vs. Planned Parenthood. That decision would make abortion a state-by-state issue like it was before 1973.

"If they overturn Roe, basically what they're saying is abortion rights are subject to no greater protection than any other health rights or social rights and can be regulated," explains Professor Glenn Smith from the California Western School of Law. "That would really return abortion regulation to each state."

But beyond their ruling in Dobbs vs. Jackson, experts say this specific case will be a litmus test for whether or not the new 6-3 Conservative majority will decide future cases based on legal analysis or along party lines.

Many feel the Supreme Court could become more partisan now that conservative Justice Amy Coney Barrett has replaced the late Justice Ruth Bader Ginsburg.

Legal analyst Dan Eaton says that typically doesn't happen.

"Justices don't decide cases as politicians," Eaton says. "What they decide them according to the law as they see it."

Professor Smith says any deviation from that could jeopardize any goodwill the Court has among the American public.

"It's important for the American people to feel like justices are not just politicians that wear black robes," Smith says. "They need to see that there's some law going on, that there are legal precedents that are weighty."

But precedent isn't always an iron-clad indicator of how the court will rule. Even though Roe vs. Wade has been in place for almost 50 years, the court could still overturn it.

"Precedent is important, but it is absolutely not conclusive," says Eaton, who pointed out that the landmark Brown vs. Board of Education ruling overturned a precedent to keep schools segregated.

"The bottom line is that the United States Supreme Court can, if there was a majority, overturn precedent, no matter how long-standing they are," he says.

If the court rules to overturn Roe vs. Wade, Eaton and Smith say it could have immediate, widespread impacts on abortion rights across the country.

According to the Guttmacher Institute for Public Policy, 12 states already have laws on the books that would ban abortion immediately if Roe is overturned: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, and Utah.

Meanwhile, five other states still have abortion bans on the books from laws that predate 1973: Alabama, Arizona, Michigan, West Virginia, and Wisconsin. While they're currently unenforced, they would likely go back into effect if Roe were to be overturned.

Smith says California would still allow abortions, as the state's Constitution protects a woman's right to choose.

But, he says there are ways that a conservative court could eliminate those protections as well.

"If the court went further and declared, for example, that upon conception the fetus had a life interest protected by the Constitution, that would radically prevent California and other states that are more abortion rights friendly from doing that," he says.

While arguments for the Dobbs vs. Jackson case begin December 1, Eaton and Smith don't expect a decision any time soon. They both say the Supreme Court usually issues major rulings like this near the end of their yearly term, which would be sometime in June.