America continues to celebrate President Biden’s nomination of Judge Ketanji Brown Jackson, the first Black woman ever nominated to the Supreme Court. As we await her confirmation, however, the Supreme Court will continue to consider cases that will directly impact our daily lives. One key issue on the Court’s agenda is reproductive rights and the right to access safe abortion care.
Before Judge Jackson joins the Court, it will decide a Mississippi case that will likely further restrict abortion and may completely overturn Roe v. Wade. As the Center for Reproductive Rights has explained:
“More than two generations of Americans have lived their lives relying on access to legal abortion. The ability to make this decision is central to gender equality, and to racial and economicjustice. The stakes could not be higher.”
Regardless of how the Court rules in the Mississippi case, threats to reproductive freedom will likely confront the Court after the new justice joins. A future Justice Jackson could play a crucial role on this issue.
What if the Court restricts abortion access but does not overrule Roe?
The Court could well decide to uphold Mississippi’s ban on abortion after 15 weeks, which clearly violates Roe and other cases protecting the right to choose, but not actually overrule Roe itself. In that case, the Far Right will push the Court to make matters even worse.
For example, the Court could decide next year on the constitutionality of the Texas law that bans abortion after six weeks. The Court has avoided ruling on the issue so far, but could well take it up after the state supreme court issues a decision on it. Or it could rule on another state law that seeks to further restrict reproductive rights or ban abortion access altogether. Any or all of these cases would seriously threaten reproductive rights. Reproductive freedom for millions is at stake.
What if the Court overturns Roe?
Reversing Roe would produce devastating consequences. Experts estimate that more than half the states would completely ban or severely limit abortion access. That would harm and threaten the lives of millions of women and others. But far-right activists won’t stop there. They are likely to push the Court to do even more harm to reproductive rights.
For example, abortion care opponents have for years tried to stop people from entering clinics through harassment, physical obstruction, and other tactics. Federal and state laws, like the federal FACE Act, have helped protect people seeking abortion care. Lower courts have rejected far-right attacks on such laws. The Supreme Court, however, has never considered the issue on the merits.
Anti-choice activists will likely renew challenges to these protections in states that continue to allow abortion care. A Supreme Court that strikes down Roe could well consider the claim that laws like FACE violate the First Amendment rights of abortion care opponents. That would threaten access even in states that allow abortion care under state law.
Anti-abortion care activists could go even further. As one brief argues in the Mississippi case, they could urge the Court to “make all abortion illegal” even in states that permit it. This would stem from the alleged right of fetal personhood that far-right activists promote. Assuming the Court does not go that far this year, the argument foretells a troubling path forward on this issue.
What could a new Justice Jackson do?
Unfortunately, not too much by herself. She will replace Justice Stephen Breyer, who will likely join the dissent this term in a ruling on the Mississippi case. Because of the Trump justices added to the Court under questionable circumstances, the Court will remain stacked against reproductive freedom. It will take hard work by progressives over a number of years to change the Court, just as the Far Right did.
Adding Justice Jackson, however, will influence the Court. As the late Justice Byron White reportedly put it , with each new justice, there’s a new Supreme Court. Justice Thurgood Marshall had an important influence on the Court by sharing his life experiences, as Justice Sandra Day O’Connor explained. As Rev. Leslie Watson Wilson recently put it, “[a]ll American people will benefit when deliberations and decision-making on our highest court are sharpened by the perspective and persuasive power of a Black woman justice.”
That perspective will likely also sharpen dissents from far-right Court rulings, helping promote reconsideration of the issue by Congress or the Court in the future. Advocates are already promoting proposed Congressional legislation that could preserve abortion access rights despite harmful Court rulings.
Replacing Justice Breyer with a Justice Ketanji Brown Jackson will not solve the problems posed by the right-wing Supreme Court. In light of the crucial issues like reproductive rights that are at stake and concern all Americans, however, it is a critical first step.