'Eliminated entirely or radically overhauled': A Q&A with abortion law expert Mary Ziegler on Roe v. Wade

'The groundwork has been laid to reverse the Florida state constitutional right to abortion,' she says

James Call

Questions the justices asked during a hearing on a Mississippi abortion ban appear to have the U.S. Supreme Court poised to invalidate access to abortion as a fundamental constitutional right.

So says Florida State University law professor Mary Ziegler, an expert on the legal history of reproductive rights, who has written abortion commentaries for The Atlantic, the New York Times and is author of Abortion and the Law in America: Roe v. Wade to the Present.

FSU law professor Mary Ziegler

In an interview with the USA TODAY Network-Florida Capital Bureau, Ziegler predicts such a ruling will lead to changes in the state's abortion laws.

Ziegler said the justices went looking for a case — Dobbs v. Jackson's Women's Health Organization — that would enable them to revisit the 1973 Roe v. Wade decision that established abortion as a fundamental right.

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If Roe is struck down, women’s access to abortion in Florida would not end immediately, said Ziegler, because of the privacy provision in the state constitution.

But it will end — eventually.

Ziegler said the way Dobbs landed on the docket makes it likely the court will revoke a right that has stood for more than two generations and nearly 50 years.

And that means the days of abortion access in Florida are numbered.

“The justices who are there were chosen not just because they were conservative, but they were chosen, at least three of them by Donald Trump, who you know, promised to pick in his words ‘pro-life justices,' " Ziegler said.

She points out there was no split in lower court rulings on Dobbs. There are no questions about the state statute at issue in the case. But the justices will use the Dobbs case to address the issue of Roe v. Wade establishing abortion as a constitutional right.

“The court really wanted to take a case that would require them to either overrule all of Roe v. Wade or part of Roe v. Wade," Ziegler said. "And based on the questions that were asked at oral argument, it seems that there are six justices who think that Roe v. Wade is either going to be eliminated entirely or radically overhauled."

The following questions and answers have been edited for clarity and brevity. 

Q: You have said the Court will reject the premise of Roe v. Wade and eliminate abortion access as a fundamental right. What would be the impact of such a ruling?

Ziegler: Most likely, the court would say that abortion laws are subject to "rational basis," which is like, if you have a law about how much cigarettes cost or something like that,  whatever the law, there's no special constitutional consideration. States would more or less get to do whatever they wanted.

There may be some unanswered questions about whether states for example, could criminalize abortion when a woman's life was at risk. There may be questions about that sort of thing, but most likely, it's going to mean that states can set whatever policies they want on abortion.

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Q: If access to an abortion is no longer a fundamental right, then would the privacy clause in the Florida Constitution become irrelevant to the abortion debate?

Ziegler: The groundwork has been laid to reverse, undo the Florida state constitutional right to abortion. Sooner or later, it's going to work.

I imagine that the Florida Legislature is going to pass some kind of abortion ban. And then either no one will challenge that, in which case, Florida will ban abortions, or someone will challenge that and the Florida Supreme Court will say there is no right to abortion.

An abortion-rights advocate holds a sign during a pro-abortion rally at Smith Park in Jackson, Miss., Tuesday, Dec. 1, 2021. Experts say if reproductive rights are further restricted in Mississippi, teen pregnancies will go up.

We have a Republican governor and a Republican legislature and a conservative super-majority on the (state) Supreme Court, so you'd expect sooner or later that Florida would resemble the rest of the South and essentially have no more legal abortion, period.

Q: So a change in Florida law would not come immediately if the Court rules as you expect?

Ziegler: At the moment, Florida case law says there is a state constitutional right. Given who is on the Florida Supreme Court, I think there is every reason to think that that won't last for forever.

There just hasn't been a proper challenge or a vehicle for the Florida Supreme Court to basically say that there is no state constitutional right to abortion.

Q: That would be momentous. Is there any historical comparison?

Ziegler: The court has reversed itself in the past, in major cases, often in the direction of expanding liberty, not retracting it.

There was a 20th century ruling that said there was a constitutional freedom to contract (that) the court had used to strike New Deal legislation. The court then reversed that and said there is no such freedom to contract, but I don't think there was the same real-world lived experience with that.

A group of anti-abortion protesters pray together in front of the U.S. Supreme Court, Wednesday, Dec. 1, 2021, in Washington, as the court hears arguments in a case from Mississippi, where a 2018 law would ban abortions after 15 weeks of pregnancy, well before viability.

There weren't that many people who wanted to work more than the maximum hours the law allowed ... with abortion, people expect that (as an) option if their contraception fails. So I don't really think there's a (comparison).

Q: You have said that the willingness to hear Dobbs indicates they are unconcerned about appearing to be partisan. Is that good or bad?

Ziegler: Both. We want the justices to be above politics. We don't want the justices to be making calculations about how they're going to come across.

On the other hand, you want justices to be concerned enough about political backlash that their decisions are not completely out of step with public attitudes. After all, the court is not a counter-majoritarian institution. The justices have lifetime appointments. You want the justices in some way to be aware of what people think of them and of the court as an institution.

An anti-abortion protester holds a cross outside the U.S. Supreme Court on Dec. 1 as justices consider state restrictions on the procedure.

The concern here is, you have a court essentially that exists because ... President Trump promised that it would be a partisan court that would deliver partisan outcomes. And that court then does what that President promised. It strains credulity that there's no partisanship involved.

Q: The ruling is expected in June of a mid-term election year when all members of the Florida Legislature and the Governor will be on the ballot. Do you expect the ruling to have an electoral impact?

Ziegler: The questions will be, for pro-choice voters, to what extent is this the No. 1 issue on which people vote versus some other concern?

The question for anti-abortion voters is, how complacent are they going to become once the court gives them what they want? If they think the court can give them what they want, they may not be as active politically as they might otherwise be.

Jo Luttazi, 22, shows their hands with a protest message on their gloves outside the Supreme Court on Wednesday, Dec. 1, 2021, in Washington. They said they came to the protest because they believe that everyone should have access to abortion as a form of healthcare, as the justices will weigh whether to uphold a Mississippi law that bans abortion after 15 weeks and overrule the 1973 Roe v. Wade decision.

James Call is a member of the USA TODAY NETWORK-Florida Capital Bureau. He can be reached at jcall@tallahassee.com. Follow on him Twitter: @CallTallahassee

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