A Case that Could Overturn Roe v. Wade Goes Before the Supreme Court

The Supreme Court will hear oral arguments on Wednesday in the most significant abortion case it has considered since it established the constitutional right to the procedure in the 1973 decision Roe v. Wade.

The case, Dobbs v. Jackson Women’s Health Organization, centers on a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy—a direct challenge to the central holding of Roe v. Wade. The outcome of the case could redefine the right to abortion in the United States and have profound implications not just for reproductive rights, but for nearly every sector of American society, from health care and criminal justice to workforce participation and the economy.

The stakes are especially high because the Supreme Court has grown more conservative in recent years. When Mississippi officials asked the high court to take the case in 2020, conservative justices outnumbered liberals 5-4. But after Ruth Bader Ginsburg died and Trump-nominee Amy Coney Barrett was confirmed, the Court lurched further right. It now has a 6-3 conservative majority.

Starting last year, the justices spent months deliberating over whether to hear Dobbs v. Jackson Women’s Health Organization. When they announced in May that they would consider it, reproductive rights groups expressed shock. The decision to consider the case at all signaled that the majority was willing to revisit the fundamental premise of Roe v. Wade, which asserts that states cannot restrict abortion before fetal viability, typically around 24 weeks into pregnancy.

On Wednesday, the Supreme Court will consider the question of whether all bans on abortion before viability are unconstitutional. Mississippi has also asked the Court directly to overturn Roe, as well as Planned Parenthood v. Casey, a 1992 decision that reaffirmed abortion rights. In the state’s brief, filed over the summer, Mississippi’s Republican attorney general, Lynn Fitch, argued that both precedents are “unprincipled decisions” without basis in the Constitution and that states should be allowed to prohibit abortion if the laws support legitimate government interests.

Read More: Inside Mississippi’s Last Abortion Clinic—And the Biggest Fight for Abortion Rights in a Generation

Legal experts largely agree that the court will more likely avoid explicitly overturning Roe, and will instead issue a decision that allows far more restrictions on abortion while technically leaving the nearly 50-year-old decision in place. But abortion rights advocates say that any decision that allows the Mississippi law to stand will effectively gut the right to abortion by opening up a pathway for states to more severely limit the procedure.

Many conservative states have passed increasingly restrictive laws regulating abortion in recent years. In November, the Court heard another set of high-profile abortion cases. In that hearing, the justices considered a Texas statute, which went into effect in September, that bans almost all abortions after about six weeks and deputizes private citizens to enforce the limit. While the Texas law’s fate is still uncertain, lawmakers in at least half a dozen other states are already drafting legislation that emulates it or have said they want to do so. If the Mississippi law also is upheld, more Republican-led states would likely follow its lead and enact similar measures in the future.

The law before the Court

The Mississippi law in question, which prohibits abortion after 15 weeks of pregnancy, was passed by the state’s Republican-majority legislature in 2018. The law makes exceptions only in cases when the fetus has a severe abnormality that is “incompatible with life” or when the pregnancy threatens the woman’s life or a “major bodily function.” Doctors who violate the ban would have their medical licenses suspended or revoked. When Mississippi’s then-Governor Phil Bryant signed the law in March of that year, he said the state was “saving more of the unborn than any state in America.”

The state’s only abortion clinic, Jackson Women’s Health Organization, immediately filed suit to block the law, arguing it was unconstitutional. A federal district court judge agreed and struck down the law. A three-judge panel of the conservative Fifth Circuit Court of Appeals then upheld that ruling. When Mississippi appealed the decision to the Supreme Court, Jackson Women’s Health Organization and its lawyers expected the justices to reject the case because it so directly challenged precedent. Instead, they found themselves preparing to fight the law again.

Read more: The Fate of Roe v. Wade May Rest on This Woman’s Shoulders

Mississippi is arguing that Roe should be overturned because the viability standard it established is arbitrary and does not appropriately take into account a state’s interest in regulating abortion. It also says that times have changed since 1973, necessitating a review of Supreme Court precedent.

“Today, adoption is accessible and on a wide scale women attain both professional success and a rich family life, contraceptives are more available and effective, and scientific advances show that an unborn child has taken on the human form and features months before viability. States should be able to act on those developments,” the office of the state’s attorney general said in its brief before the Court.

If the Court does not overrule Roe, state officials argue the justices could instead significantly weaken it by either allowing bans before fetal viability or by ruling that the 15-week law does not put a significant burden on people in Mississippi.

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Jackson Women’s Health Organization provides abortions up to 16 weeks, so the state has argued its law “reduces by only one week the time in which abortions are available in Mississippi.” But the state legally allows abortions up to 20 weeks right now, and Mississippi officials have repeatedly attempted to challenge the right to all abortions, not just those after 15 weeks. In 2019, Mississippi passed a six-week abortion ban, which was blocked by the courts, and in June, Mississippi Governor Tate Reeves, a Republican, told CNN that he sees the 15-week ban as a “vehicle” for the Supreme Court to revisit Roe.

Abortion rights supporters argue that the Mississippi law is clearly unconstitutional and that Mississippi has not made a convincing case for why the Supreme Court should deviate from its precedent.

“The State’s suggestion that gains in women’s status somehow support taking away their right to make basic decisions about their lives and their bodies is nonsensical,” lawyers for Jackson Women’s Health Organization wrote in their brief before the Court. “Even if the claim that the United States had achieved full gender equality were true (it is not), those gains were made while the Court has steadfastly reaffirmed the right to abortion.”

The clinic’s lawyers also say that viability remains a useful standard for abortion laws. “Since the court has looked at these issues before, looked at these same arguments and rejected them, nothing has changed,” Julie Rikelman, director of litigation at the Center for Reproductive Rights, who will argue the case on behalf of the Mississippi clinic, told reporters recently. “Nothing has changed in terms of the facts. Nothing has changed in terms of the law. So there is just no basis for the Court to reach a different outcome today than it has in the past on this right.”

What the justices could do

While it’s impossible to know how the Supreme Court will decide, legal scholars say there are a few most likely paths.

The Court may decide that abortion bans before fetal viability are constitutional. That decision would drastically change the way states interpret what laws they are allowed to pass. If this happens, dozens of other abortion laws that have been blocked or challenged in lower courts could suddenly be reconsidered.

The Court may also decide to revisit Casey, the 1992 decision that said states could pass restrictions as long as they did not pose an “undue burden” to people seeking them. If the justices rule that Mississippi’s 15-week law does not pose an “undue burden” on patients, that would also expand what laws the state and others like it seek to implement under that new standard.

The Court may also choose to reinterpret the standard for abortion laws in another way, then send the Mississippi case back to lower courts to consider the law under whatever new standard has been established.

Of course, the Court could choose to overturn Roe directly. But legal scholars say that’s perhaps less likely due to concerns that such a decision may be interpreted as overtly political. Public opinion of the Supreme Court hit a record low this fall, and four of the nine justices have expressed concerns in recent months about being viewed as overly partisan. The American Bar Association filed a brief addressing this topic, telling the Court that reversing such long-held precedents “would create a wave of political and social turmoil, and damage the Court as an institution.” Whatever they decide, the justices may also avoid establishing any specific new standard, legal experts say, because the Court would then have to overrule that if it does completely overturn Roe in the future.

The justices are expected to decide the case by the end of the current term in June.

Immense stakes for the country and the courts

Both abortion rights advocates and abortion opponents are gearing up for big changes after the Supreme Court rules.

Mississippi says in its brief that it hopes Dobbs v. Jackson Women’s Health Organization will settle the abortion debate in the U.S. and allow individual states to restrict abortion however their lawmakers would like. “The national fever on abortion can break only when this Court returns abortion policy to the States,” Mississippi’s brief says.

Abortion rights advocates argue that such a ruling would create chaos both for people seeking abortions and for the courts. A decision explicitly overturning Roe would have immediate consequences. Twelve states, including Mississippi, have what are known as “trigger” laws designed to ban all or most abortions shortly after the Supreme Court overturns Roe. Nine other states have previously passed laws that stringently restrict abortion, which they could move quickly to implement, and five more states are likely to try banning abortion if allowed to do so, according to the Guttmacher Institute, a research center that supports abortion rights. All told, about half of the states are expected to quickly criminalize abortion.

Read More: The Supreme Court Will Consider the Texas Abortion Law. Their Decision Could Change the Court—and the Country

This would create an even more stark patchwork of access across the country than already exists, making abortions completely inaccessible across much of the South and Midwest. Many people would need to cross state lines and travel hundreds of miles to reach the nearest clinic. Abortion rights advocates, researchers, legal scholars and economists have also argued in amicus briefs that this would have a powerful impact on women’s equality by hurting their health, educational and career opportunities, as well as the financial security of individuals and their families.

All of these consequences would disproportionately impact people who are already vulnerable, including low-income women, people of color, LGBT people and those who live in rural areas. Those who work low-wage jobs and have limited access to paid time off face extra challenges navigating the logistical and financial hurdles of accessing abortions. Black women also have much higher rates of maternal mortality than white women, and experts have warned that abortion restrictions could lead to more maternal deaths. Advocates also fear that Black people would face stiffer consequences if abortion were criminalized, given the racism embedded in many parts of the U.S. justice system.

In Mississippi, many of the patients at Jackson Women’s Health Organization are young, low-income Black women who have children. The state already significantly limits abortion in many ways, which the clinic staff say makes it difficult for their patients to afford their services. Mississippi prohibits abortion after 20 weeks, bars telemedicine for abortion, mandates in-person counseling and then a 24-hour waiting period, requires parental consent for minors, does not allow public health insurance to cover abortion in most cases, and requires that doctors who perform abortions be board-certified obstetrician-gynecologists.

The clinic has a fund to help some patients afford abortions, and many get help from other abortion funds too. If the Supreme Court allows states to restrict abortion further, barriers will increase, but abortion providers and advocates note that people will not stop seeking abortions.

“People need to understand that if you’re already suffering, taking something away does not make the suffering go away. It increases the suffering,” Shannon Brewer, the director of Jackson Women’s Health Organization, told reporters earlier in November. “And that’s what’s gonna happen here.”