Solomon Center Panel Discusses Dobbs v. Jackson Women’s Health Organization

On Oct. 25, 2021, the Solomon Center for Health Law and Policy hosted a panel discussion about Dobbs v. Jackson Women’s Health Organization, the case on Mississippi’s ban on abortion after 15 weeks gestational age that will be argued before the Supreme Court on Dec 1. The event was co-sponsored by the Yale Health Law and Policy Society and the Yale Program for the Study of Reproductive Justice and featured experts in reproductive justice.

The panel, “Dobbs v. Jackson Women’s Health Organization: Roe on the Line,” was moderated by Clinical Lecturer Linda Greenhouse ’78 MSL, a former New York Times Supreme Court correspondent and Pulitzer Prize winner who has written widely about the law and politics of abortion. The panel featured Hillary Schneller, Senior Staff Attorney at the Center for Reproductive Rights and co-lead counsel for Jackson Women’s Health Organization; Rutgers Law School Co-Dean and Professor of Law Kimberly Mutcherson, who writes on issues related to reproductive justice with a particular focus on assisted reproduction, abortion, and maternal-fetal decisionmaking; and Yale Law School’s Nicholas deB. Katzenbach Professor of Law Reva Siegel, whose writing draws on legal history to explore questions of law and inequality and to analyze how courts interact with representative government and popular movements in interpreting the Constitution.

Greenhouse opened the panel with a discussion of the Court’s expedited grant of certiorari on the suits against Texas S.B. 8, a law that bans abortion after six weeks gestational age. This case was argued on Nov. 1, in the fastest movement through the court system since Bush v. Gore. Schneller discussed how the human rights violations seen in Texas since S.B. 8 took effect provide an unfortunate preview of what the country would look like if the Court sides with Mississippi and overturns Roe. Mutcherson added that the Court’s response to S.B. 8 changed her opinion of how the Court would restrict abortion rights. Before S.B. 8, she believed that the Court would continue the slow death of Roe that began with the decision in Planned Parenthood v. Casey that established the undue burden standard, and would use Dobbs to create broader ways for states to restrict abortion or shut down clinics. Now, Mutcherson said, she is concerned that the Court may explicitly overturn Roe this year.

Panelists then discussed how the Court could pretend to uphold Roe while also upholding Mississippi’s ban, saying it would be just that: pretending. Roe’s essential holding, as upheld in Casey, is a that a person has the right to an abortion before fetal viability. Fifteen weeks is indisputably before viability, panelists noted, so the ban at issue in Dobbs blatantly violates precedent.

Siegel spoke on the equal protection aspect to abortion, which she emphasized in her amicus brief for this case. Though the typical framework for abortion rights focuses on the substantive due process, or liberty right, the panelists highlighted how abortion also implicates equal protection. Laws regulating pregnancy, including abortion, distinguish between access to health care on the basis of pregnancy and are thus impermissible under an equal protection framework. Schneller mentioned how Mississippi has been worried by this argument, as the state’s initial and reply briefs contend that women are thriving and no longer need such protective laws. 

The conversation ended with a Q&A session. Panelists emphasized how the Court will likely misread old cases, claiming dicta as holding, to reestablish precedent and justify a holding restricting abortion access as following stare decisis. Mutcherson discussed avenues for advocacy, emphasizing state-level action and the intersectionality of abortion rights with other rights such as voting and family care issues. The discussion ended on a hopeful note, with the panelists emphasizing the importance of talking and thinking about these issues.

The Solomon Center is the first of its kind to focus on the intersection of law and the governance, practice, and business of health care. The Center brings together leading experts and practitioners from the public and private sectors to address cutting-edge questions of health law and policy, and to train the next generation of top health lawyers, industry leaders, policymakers, and academics.