The Lead Co-Counsel in Dobbs v. Jackson Women’s Health Organization shares legal insights on fighting for abortion access
Hillary Schneller, senior counsel for the Center for Reproductive Rights and co-lead counsel in Dobbs v. Jackson Women’s Health Organization, discussed the ongoing Supreme Court case and her fight for reproductive rights in a dialogue hosted by the Emory Law Chapter of the American Constitution Society on April 4. In front of a crowd of about 25 students, Schneller outlined the legal foundations of the case, pointing out the harmful effects of restricting access to abortion.
In the Dobbs case, the Supreme Court considers a Mississippi straight which prohibits abortions after 15 weeks except in cases of medical emergency or fetal abnormality, directly challenging the precedent set by Roe v. Wade and Planned Parenthood v. Casey. The court, currently made up of a conservative supermajority, could potentially undermine or overturn the Roe ruling in its ruling on the Dobbs case.
The Supreme Court heard oral arguments in the case in December 2021 and will issue a decision before the end of the court’s term in June 2022.
The event was structured in the form of questions and answers. Incoming Emory Law School American Constitution Society President Nick Smith (23L) introduced Schneller, and incoming Vice President Andrew Sykes (24L) reviewed relevant legal history leading up to the Dobbs case, highlighting the decisions of Roe v. Wade (1973), Planned Parenthood v. Casey (1992) and Whole Woman’s Health v. Hellerstedt (2015). Host Alyssa Rogowski (23L), the outgoing chair, led with several questions before opening the discussion to all attendees.
In his responses, Schneller outlined four legal arguments that shaped the Center for Reproductive Rights case: that upholding the Mississippi ban would degrade the court’s legitimacy, overthrow Roe, deepen gender inequality, and cause harm and chaos to Americans.
Undermining decades of precedent asserting Roe would diminish the court’s integrity and legitimacy in the eyes of the American public, Schneller said.
“The position of the court in the country matters to them,” Schneller said. “It should because that’s where they get their power from.”
Then Scheller argued that there was no middle ground between upholding the Mississippi ban and overturning Roe. Because Roe and Casey’s central position is that states cannot ban abortions before viability – which is around 23 to 24 weeks –Schneller said if the court upheld the fifteen-week ban, they’d overturned Roe.
The Center for Reproductive Rights’ third major argument centers on gender equality, asserting that access to abortion responds to the right to liberty and privacy.
“One of [Mississippi’s] The main arguments are that women no longer need access to abortion because we have achieved this ideal world of gender equality,” Schneller said. “I’m not exaggerating, you can see their briefs.”
Discussions of gender equality also intersect with issues of racial equity, Schneller added. She cited Mississippi’s startling infant and maternal mortality rateswhich are particularly high among people of color.
Also, Schneller mentioned an amicus brief by leading economists which shows that much of women’s progress over the past 50 years is the result of access to abortion, further illustrating how access to abortion promotes gender equality .
Schneller’s concluding argument was that maintaining the abortion ban and overturning Roe would unleash “chaos and evil” upon the country. However, she added that many people do not recognize this possibility.
“I think it’s hard to convince Supreme Court justices, who live in a different world, of the practical harm [restricting abortion access] would cause,” Schneller said.
Schneller called Mississippi’s argument for submitting the abortion issue to the states “dishonest,” noting that overthrowing Roe would trigger abortion bans in many states and hurt Americans.
She suggested students refer to “What If Roe Fell” from the Center for Reproductive Rights. menu to see the status of abortion rights in the states if Roe were overthrown.
Six-week abortion ban underway in Texas by Senate Invoice (SB)8 provides a glimpse of the turmoil that could result from Roe’s knockdown, Schneller said. She added that SB 8 delegates private citizens to enforce the ban and has removed access to safe and legal abortion for many women who are unaware they are six weeks pregnant.
In addition, Schneller admitted that the Supreme Court’s refusal to block SB 8 on procedural grounds sends “wrong signals” for their review of Mississippi law on its merits.
“I’ve been doing this for over 10 years and it’s really different now – it gives less hope,” Schneller said.
However, Schneller expressed confidence in the arguments of the Center for Reproductive Rights and stressed the importance of not giving up in the fight for reproductive rights.
“We have to believe we can win to do this job,” Schneller said.
She added that if the clinics she represents can persist, so can she.
In response to a question from a student about the limits of legal remedies given the current conservative tilt of the judiciary, Schneller said she believed lawyers still had a role to play in the fight for the right to abortion. She highlighted his work fighting abortion restrictions at the state level, which will help mitigate short-term damage if Roe is overthrown. For example, the Center for Reproductive Rights and the American Civil Liberties Union have succeeded argued in February against a Montana law banning advanced practice nurses from performing abortions.
“These are very promising cases to work on,” Schneller said.