The Supreme Court Just Took Up a Case That Poses a Major Threat to Roe v. Wade

The Supreme Court said on Monday it will hear a challenge to a Mississippi law barring almost all abortions after 15 weeks of pregnancy, setting up a clear opportunity for the court’s new 6-3 conservative majority to reexamine Roe v. Wade, the 1973 decision that established the constitutional right to abortion.

This case, Dobbs v. Jackson Women’s Health Organization, will be the first time the court considers a state restriction on abortion since Justice Amy Coney Barrett was confirmed last fall. It’s one in a wave of state laws limiting abortion passed in recent years that are designed to challenge the decades-old ruling.

Barrett is one of three Supreme Court justices appointed by former President Donald Trump and an open opponent of abortion rights. Before she joined the court, Trump’s two other appointees, Brett Kavanaugh and Neil Gorsuch, dissented last June when the court struck down a Louisiana abortion law in June Medical Services v. Russo. Chief Justice John Roberts sided with the court’s liberals in that decision, but made clear it was only because the Louisiana law was nearly identical to a Texas one the court had ruled against in 2016 and he didn’t want to ignore the court’s own recent actions.

This time, the details of the case are different, and Barrett’s position means the other conservatives on the court don’t need Roberts’ vote to significantly diminish protections for reproductive rights. “It’s a huge deal,” says Mary Ziegler, a Florida State University law professor who studies abortion. “There’s no way that four of the conservatives would want to take this case unless they felt they had a fifth to uphold Mississippi’s law.”

The Mississippi law would prohibit all abortions after 15 weeks of pregnancy except in the cases of medical emergencies and severe fetal abnormalities. It has not gone into effect because a federal district judge and a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit both blocked the ban, saying the law went against decades of precedent that a woman has the right to an abortion before the fetus is viable, or before it can survive outside the womb.

“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 in the appeals court decision in 2019. “States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right but they may not ban abortions.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, which is representing the Jackson, Miss. abortion clinic at the center of the case, told reporters on Monday that she had expected the Supreme Court to decline to hear the case because of that longstanding precedent. The court had delayed taking action on Dobbs since last year, but now it will take up the case with a focus on exactly that question of “whether all pre-viability prohibitions on elective abortions are unconstitutional.”

Even if the high court doesn’t overturn Roe, any decision in favor of the Mississippi law would have significant ramifications for abortion rights across the country. “The court cannot uphold this law without overturning the principle protections of Roe vs. Wade,” Northup said on Monday.

Part of advocates’ concern is that, without the viability standard, there would be no established alternative for when states must allow people to obtain abortions, according to Ziegler. “If viability isn’t the limit, then what is the limit? Is it when you can detect a heartbeat? Is it fertilization? So it’s not clear, if the court says you can ban abortions pre-viability, if there’s going to be any limit [on when they can ban abortions] at all,” she says.

That is exactly what many abortion opponents are hoping will happen. “This is a landmark opportunity for the Supreme Court to recognize the right of states to protect unborn children from the horrors of painful late-term abortions,” Susan B. Anthony List President Marjorie Dannenfelser said in a statement on Monday.

Mississippi Gov. Tate Reeves said the Supreme Court’s move to take up the case was long overdue. “The sanctity of life. The future of our children. Mississippi is at the forefront of protecting both. And that is what is at stake in the case we have been praying the U.S. Supreme Court would decide to hear,” he said in a Facebook post.

The Biden Administration and abortion rights advocates support legislation that has been proposed in Congress that would effectively create a federal right to abortion, but it has not made much progress. Right now, Jackson Women’s Health Organization is the last remaining abortion clinic in Mississippi, so the outcome of the case could make it more difficult for people in that state and across the South to access abortion. Eleven states also have what are known as “trigger bans” that would prohibit abortion if Roe were overruled, according to the Center for Reproductive Rights.

The case will be heard in the Supreme Court’s upcoming term, which starts in October, and a decision is likely to come next year.