The justices will hear arguments Wednesday over a Mississippi law that bans abortion after 15 weeks in a direct challenge to Roe v. Wade.
The case poses the clearest test yet of the 6-3 conservative court’s trajectory.
Conservatives and anti-abortion activists have since 1973 sought to narrow or overturn the legal right to an abortion first recognized in the Roe decision. They hope the upcoming Mississippi case finally leads to its dismantling.
The state's Republican attorney general, in a court brief filed over the summer, explicitly urged the justices to overrule Roe and related rulings, calling the court’s precedent on abortion “egregiously wrong.”
“This Court should overrule Roe and Casey,” Mississippi Attorney General Lynn Fitch (R) wrote, referring also to the court’s 1992 decision in Planned Parenthood v. Casey. “Roe and Casey are egregiously wrong. They have proven hopelessly unworkable. ... And nothing but a full break from those cases can stem the harms they have caused.”
Under Roe and Casey, states may regulate abortion up to the point of fetal viability, typically around 23 weeks, so long as the restriction does not pose an "undue burden" on abortion access. Mississippi’s law, which bans abortion after 15 weeks of pregnancy and makes exceptions only for medical emergencies or “severe fetal abnormality,” is a clear-cut violation of this framework, critics say.
Compared to the recent past, however, abortion opponents now face a far more sympathetic Supreme Court bench. In a 2020 abortion decision, for example, a 5-4 court that ruled against a Louisiana abortion restriction included a vote by the late liberal stalwart Justice Ruth Bader GinsburgRuth Bader GinsburgProgressives see Breyer retirement as cold comfort Documentary to be released on Gabby Giffords's recovery from shooting The Hill's 12:30 Report - Presented by Facebook - Breaking: Justice Breyer to retire MORE, who joined the court's three other liberals and Chief Justice John Roberts to form a bare majority.
But former President TrumpDonald TrumpNorth Korea conducts potential 6th missile test in a month Kemp leading Perdue in Georgia gubernatorial primary: poll US ranked 27th least corrupt country in the world MORE's replacement of Ginsburg with Justice Amy Coney BarrettAmy Coney BarrettProgressives see Breyer retirement as cold comfort Schumer vows to vote on Biden Supreme Court pick with 'all deliberate speed' Breyer to retire from Supreme Court MORE has radically changed the court's ideological makeup, along with Justice Brett KavanaughBrett Michael KavanaughHow Cruz Supreme Court case could lead to unlimited anonymous election spending Will the justices end race-based affirmative action? Are the legal walls closing in on Donald Trump? MORE in 2018 filling the seat previously held by the more moderate Justice Anthony Kennedy. The solidly 6-3 conservative court has now thrown the fate of longstanding federal abortion protections into question.
In a court term packed with politically explosive topics, from gun rights to issues of church-state separation, the dispute over Mississippi’s ban could provide the clearest indication yet of just how far the heavily conservative Supreme Court is willing to go to fundamentally reshape major aspects of American life.
Robert Tsai, a constitutional law professor at Boston University, emphasized that the court’s more conservative justices “have been raised on a steady diet of teachings that Roe has always been illegitimate.”
“For most of them,” he said, “it has been just a matter of when, not if, to vote against abortion rights.”
Wednesday’s arguments come as the country awaits the court’s ruling on another controversial abortion restriction: Texas’s S.B. 8, which bans abortion at the first sign of fetal cardiac activity, typically around six weeks.
In September, a 5-4 court allowed the Texas law to take effect; the justices in early November heard expedited oral arguments over a challenge to the law, and a ruling could come at any time.
Over the roughly three-month span that Texas’s law has been in effect, the country has been given a glimpse of what a post-Roe world might look like. S.B. 8, the most restrictive abortion law in the country, has largely shut down abortion in Texas and forced many women to travel outside the state for treatment.
Many Republican officials would prefer this approach, which allows states to determine the rules around abortion. In the Mississippi case, a dozen GOP governors asked the justices in a court filing to eliminate federal abortion protections in order to allow states to regulate the procedure.
This is no idle request, either. The 2018 Mississippi law — which has been paused during litigation — is just one of hundreds of abortion measures that state legislatures passed in recent years, many with the explicit goal of overturning Roe.
The Center for Reproductive Rights, an abortions rights group and co-counsel in the Mississippi case, analyzed abortion laws in all 50 states, the District of Columbia and several U.S. territories for a 2019 study called “What If Roe Fell?” The group inventoried what measures would be left in place if Roe were weakened or overturned and rated jurisdictions along a continuum from “expanded access” to “hostile.”
The study found that abortion would remain legal in 21 states, while 24 states and three territories would likely move to impose some form of ban. In the remaining five states, abortion would remain “accessible but vulnerable.”
Abortion rights advocates say this scenario would be a recipe for “chaos.” In their court brief opposing Mississippi's law, abortion providers urged the Supreme Court against formally undermining the constitutional right to abortion.
“The fallout would be swift and certain,” abortion providers argued in their court brief. “As abortion bans are enforced — or the threat of enforcement looms — large swaths of the South and Midwest would likely be without access to legal abortion.”
Mississippi’s appeal comes after losing two rounds in the lower courts. In 2019, the U.S. Court of Appeals for the 5th Circuit held that the state’s restriction was an unconstitutional ban on a woman’s right to terminate an unwanted pregnancy before viability.
The appeals court found that Mississippi’s restriction violated “an unbroken line dating to Roe v. Wade” in which the Supreme Court has consistently reaffirmed “a woman’s right to choose an abortion before viability.”