WASHINGTON – The Supreme Court announced Monday that it will review a restrictive Mississippi abortion law that opponents of the procedure say provides a clear path to diminish Roe v. Wade’s establishment of the right of women to choose an abortion.
Abortion opponents for months have urged the court’s conservatives to seize the chance to reexamine the 1973 precedent. Mississippi is one among many Republican-led states that have passed restrictions that conflict with the court’s precedents protecting a woman’s right to choose before fetal viability.
In accepting the case, the court said it would examine whether “all pre-viability prohibitions on elective abortions are unconstitutional.” That has been a key component of the court’s jurisprudence.
The Mississippi law would ban almost all abortions after 15 weeks of pregnancy, with narrow exceptions for medical emergencies or fetal abnormalities. It has not gone into effect because a district federal judge and a panel of the U.S. Court of Appeals for the 5th Circuit said that it could not be squared with decades of Supreme Court precedents.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and reaffirmed) a woman’s right to choose an abortion before viability,” Judge Patrick Higginbotham wrote for the appeals court. “States may regulate abortion procedures before viability so long as they do not impose an undue burden on the woman’s right but they may not ban abortions.”
The court has now accepted for the term that begins in October two issues dear to conservatives: gun rights and the ability of states to restrict abortion. It is what they had hoped for once the court reached a 6-to-3 conservative majority with the addition of Justice Amy Coney Barrett, a conservative nominated by President Donald Trump.
“This is a landmark opportunity for the Supreme Court,” Marjorie Dannenfelser, president of Susan B. Anthony List, said in a statement. “Across the nation, state lawmakers acting on the will of the people have introduced 536 pro-life bills aimed at humanizing our laws and challenging the radical status quo imposed by Roe. It is time for the Supreme Court to catch up to scientific reality and the resulting consensus of the American people as expressed in elections and policy.”
Abortion rights advocates said the court’s action should be greeted with “alarm bells.”
“The Supreme Court just agreed to review an abortion ban that unquestionably violates nearly 50 years of Supreme Court precedent and is a test case to overturn Roe v. Wade,” said Nancy Northup, president of the Center for Reproductive Rights, one of the groups representing a Jackson, Miss. clinic at the center of the case.
“This is not a drill,” added Elizabeth Nash of the Guttmacher Institute. “The [Supreme Court’s] decision comes at a time when conservative politicians in over a dozen states are dismantling abortion rights and access with a vengeance and could eclipse even the record of enacted restrictions set in 2011.”
Mississippi already bans abortions after 20 weeks, and it has also passed legislation that would ban most abortions once a fetal heartbeat is detected, or near six weeks. Lower courts declined to let that law, or the 15-week ban passed in 2018, take effect.
Mary Ziegler, a Florida State University law professor and author of “Abortion and the Law in America: Roe v. Wade to the Present,” said it was “impossible to overstate” the threat to Roe.
But she added that the court does not have to actually overturn the decision to void its impact, by eliminating fetal viability as the point at which bans are allowed.
“Without viability, it is not clear whether the court will impose any limit on abortion bans,” Ziegler said.
At present, lower courts have been guided by Supreme Court precedent in blocking abortion restrictions.
U.S. District Judge Carlton Reeves wrote in a 2018 ruling on the 15-week ban that the Mississippi legislature’s “professed interest in ‘women’s health’ is pure gaslighting.”
“The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Reeves wrote.
The state argued that because the clinic challenging the law offered abortions only up to 16 weeks, the law was not affecting many women. The harm to the state, it said, was “requiring it to permit inhumane abortion procedures which cause a fetus to experience pain – a factor the Supreme Court has never explicitly addressed.”
Antiabortion activists are hoping that a changed Supreme Court will alter that jurisprudence. Trump said overturning Roe was a priority when he chose three justices: Neil M. Gorsuch, Brett M. Kavanaugh and Barrett. Kavanaugh and Barrett could be particularly important because they replaced two justices who had protected abortion rights, Justices Anthony M. Kennedy and Ruth Bader Ginsburg, respectively.
Until the Supreme Court acts, it is likely that lower courts will continue to strike down the restrictive laws, even if reluctantly.
That was evident in the 5th Circuit’s decision. Even though the panel was unanimous in striking the Mississippi law, Circuit Judge James Ho wrote separately to criticize Reeves’s opinion.
The decision, Ho wrote, “displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life.”
The case is Dobbs v. Jackson Women’s Health Organization.