Judge Ketanji Brown Jackson and Abortion Law: Overarching Impacts

The amount of influence that the political inclination of the Supreme Court has upon the zeitgeist cannot be overstated. The opinion of a nation can be wholly considered, after all, by appraising that of the highest court in the nation. In the current day, therefore, the appointment of Justice Ketanji Brown Jackson can be safely perceived as a more progressive shift in the opinions that the nation desires to see. That said, with the recent shifts in reproductive healthcare rights in the more conservative centers of the nation, it would be worthwhile to analyze the potential impacts that this appointment could have upon them. 

The need for this analysis becomes more pressing when considering the ripple effect that previous Supreme Court rulings have had, particularly within the past year: most strikingly, in the case of Texas Senate Bill 8. Senate Bill 8, most commonly abbreviated as SB8 or referred to as the Texas Heartbeat Act, was signed into law in May of 2021, eliciting widespread backlash from abortion providers in the state. The act, in essence, deputized citizens to report those who either “intend” to perform an abortion or “aid and abet” those who do.1 A series of legal battles ensued, culminating in the case Whole Woman’s Health et al. v. Jackson, Judge, District Court of Texas 114th District, et al. (2021) being argued. 

While it is important to note that this case was not the first instance in which petitioners held that SB8 was unconstitutional, Whole Woman’s Health was unique in pursuing the right to further litigate defendants who were not medical professionals. Ultimately, the case was largely remanded, blocking petitioners’ ability to pursue legal action against defendants who were not medical professionals: in essence, shifting the onus of defense from lawmakers to medical providers within the state.2 Justice Sotomayor, in conjunction with Justices Breyer and Kagan, wrote in partial dissension, stating that the decision was a “dangerous departure from its precedents” in reference to both Roe v. Wade (1973) and the previously unseen manner in which SB8 provided a loophole for lawmakers to avoid liability.3 The act, ultimately, remained in effect before and after this case was being tried. 

In knowing the facts of the case, and the overarching implications of the decision made, it is imperative that an observer takes into account the political affiliations of the Court both during and after Whole Woman’s Health. The Court, at the time, had a strong conservative lean, with the appointments of Justices Kavanaugh and Coney Barrett cementing their foothold. Moreover, the Court had no Black women appointed to it at the time. This was an especially glaring absence, considering that Black women in America face maternal mortality rates thrice those of white women.4 With Justice Coney Barrett, in particular, leaning toward an ideology of originalism, a case that favored progressive opinion (i.e., Whole Woman’s Health) would have likely been struck down, despite the benefits that ensuring reproductive healthcare would have for people in Texas. However, in determining the future of reproductive rights in the nation, the recent appointment of Justice Jackson could signal rulings that significantly differ in nature. Progressive abortion rights could activists consider the elevation of Justice Jackson to be a sign of more liberal rulings, despite her more tempered stance on reproductive rights during her confirmation hearings. 

This interpretation is further underscored by her previous record with abortion rights. Notably, in Healthy Futures of Texas v. Department of Health and Human Services (2018), Justice Jackson ruled in favor of the plaintiff. In consideration of the Obama-era right to funding granted to abortion providers in the state, Justice Jackson held that the actions of the defense to prematurely divert funds were arbitrary and capricious.5 While this action was rendered more ineffective by the signing of SB8 three years later, it remains a strong piece of evidence for arguments that paint Justice Jackson as a sign of balance within the Supreme Court. 

Moreover, Justice Jackson contrasts with newer Supreme Court appointees on the matter of stare decisis. Particularly, Justice Coney Barrett exists in compliance with the ideals of Former Justice Scalia as a staunch originalist.6 In the context of her reproductive rights rulings, this belief could serve as an indication that her commitment to stare decisis falls secondary to her belief that the Constitution should be interpreted as it was originally written. As signaled by both widespread conservative approval of her, and her own agreeing opinion in Whole Woman's Health, this belief offers a basis for assuming that she would support striking down cases that use Roe v. Wade as precedent. The assumption that Justice Jackson could temper this is not unreasonable, considering her own record as a staunch advocate for stare decisis. In the context of Roe v. Wade serving as precedent for Whole Woman’s Health and the newer Dobbs v. Jackson Women’s Health Organization, the commitment to precedent could signal a liberal opinion more in line with those of Justices Sotomayor and Kagan. 

Currently, the crux of the argument for determining Justice Jackson’s pull toward a more neutral Supreme Court lies in Dobbs v. Jackson Women’s Health Organization. Mirroring Whole Woman’s Health in a case that calls Roe v. Wade into question, Dobbs attempts to uphold the Gestational Age Act, which outlaws abortions in Mississippi after 15 weeks of pregnancy.7 Public outcry, supporting the defendant, has posited that a ruling in favor of the plaintiff runs directly contrary to the support of abortion rights that Roe v. Wade provides. It is estimated that a ruling in favor of the plaintiff could result in at least 20 states restricting access to reproductive rights.8 Justice Breyer, in critiquing the plaintiff, echoed an opinion stated in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), stating that ruling in favor of the plaintiff without sufficient reasoning undermined the legitimacy of precedent and the Court itself.9 

Ultimately, as a ruling on Dobbs v. Jackson Women’s Health Organization has not yet been decided, calculating the scope of impact that Justice Jackson could stand to have upon upholding Roe v. Wade is speculative. Justice Breyer, ruling on his last landmark case regarding abortion rights, seems unlikely to stop the rightward lean that rulings on cases like Whole Woman’s Health have signaled. However, looking to the future, it would not be implausible to assume that Justice Jackson’s appointment to the Court as a progressive Black woman signals significant future changes in how precedent is interpreted and upheld. Considering her previous record on reproductive rights, positive stance on stare decisis, and consistent commitment to minority rights, the future looks hopeful.

1 Texas Senate Bill 8, Texas Health & Safety Code §171 (2021).

2 Whole Woman's Health v. Jackson, 23 F.4th 380, 2022 U.S. App. 

3 Ibid.

4 Centers for Disease Control and Prevention “Working together to reduce Black Maternal Mortality. Centers for Disease Control and Prevention” (6 April 2022).

5 Healthy Futures of Tex. v. HHS, 326 F.R.D. 1, 2018 U.S. Dist.

6 Adam Liptak, “Barrett’s Record: A Conservative Who Would Push the Supreme Court to the Right,” The New York Times (12 October 2020).

7 Gestational Age Act, Miss. Code Ann. § 41-41-191 (2022).

8 Adam Liptak, “The Supreme Court seems poised to uphold Mississippi’s abortion law.” The New York Times (1 December 2021).

9 Ibid.