Court Grants Certiorari in Mississippi Abortion Case, Dismisses Title X Cases
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Yesterday, the Supreme Court granted certiorari in Dobbs v. Jackson Women's Health Organization. It will be the first abortion case decided with Justice Barrett on the Court. The case concerns Mississippi's Gestational Age Act, which prohibits abortions after 15 weeks of gestational age except in cases of medical emergency or severe fetal abnormality. In its petition, the State of Mississippi asked the Court to decide three questions: (1) whether all pre-viability elective-abortion prohibitions are unconstitutional; (2) whether Mississippi's law should be analyzed under Casey's "undue burden" standard or instead under Hellerstedt's burdens-versus-benefits balancing test; and (3) whether abortion providers have third-party standing to bring their challenge. The Court limited its grant of review to the first question presented. As Ed Whelan has explained, it is unsurprising that the Court declined to take the second question in light of June Medical Services v. Russo, which the Court decided two weeks after Mississippi filed its petition. Moreover, while the Court's declining to take the third question may indicate that a majority of the Court has no present interest in revisiting the third-party standing issue, because standing goes to Article III jurisdiction, the lack of merits briefing will not preclude the Court from reaching the issue should it choose to do so.
In the same list of orders, the Court dismissed petitions in three cases that challenged the Trump Administration's Title X rule. The government and the plaintiffs had stipulated to the dismissal. Later, the government opposed motions to intervene by parties seeking to defend the rule, and it filed a letter brief indicating that it will continue enforcing and defending the rule (outside of Maryland, where the rule remains enjoined) until the new administration completes its anticipated notice-and-comment rulemaking. Justices Thomas, Alito, and Gorsuch would have granted the motions for intervention and denied the parties' stipulations to dismiss.