The case, arising from a Mississippi law that bans most abortions after 15 weeks, could undermine the constitutional right established in Roe v. Wade.,
Supreme Court to Hear Abortion Case Challenging Roe v. Wade
The case, arising from a Mississippi law that bans most abortions after 15 weeks, could undermine the constitutional right established in Roe v. Wade.
Activists demonstrating for and against abortion rights in front of the Mississippi State Capitol in 2019.Credit…Andrea Morales for The New York Times
WASHINGTON — The Supreme Court on Monday plunged back into the contentious debate over abortion, agreeing to hear a case that will give its newly expanded conservative majority an opportunity to pare back the constitutional right to abortion established nearly a half century ago in Roe v. Wade.
The new case, concerning a Mississippi law that seeks to ban most abortions after 15 weeks of pregnancy — about two months earlier than Roe and subsequent decisions allow — is seen by both sides as potentially pivotal in establishing how aggressively the court’s new six-justice conservative majority will move to place new constraints on abortion rights.
Supporters of abortion rights denounced the court’s decision to take up the case, saying that merely by agreeing to hear it the conservative justices were signaling a willingness to revisit Roe.
“Alarm bells are ringing loudly about the threat to reproductive rights,” Nancy Northup, the president of the Center for Reproductive Rights, said in a statement. “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.”
Backers of the Mississippi law said that it was necessary to protect fetal life and expressed confidence that it would be judged constitutional by the Supreme Court.
“The Mississippi Legislature enacted this law consistent with the will of its constituents to promote women’s health and preserve the dignity and sanctity of life,” Lynn Fitch, the state’s Republican attorney general, said in a statement. “I remain committed to advocating for women and defending Mississippi’s legal right to protect the unborn.”
The justices will hear the case in their next term, starting in October, and are likely to deliver a decision in the spring or early summer next year, as the 2022 midterm elections are gearing up. The stakes of the case ensure that the abortion debate will remain a political flash point, rallying conservative and liberals alike.
Last summer, the Supreme Court struck down a restrictive Louisiana abortion law by a 5-to-4 margin, with Chief Justice John G. Roberts Jr. providing the decisive vote. His concurring opinion, which expressed respect for precedent but proposed a relatively relaxed standard for evaluating restrictions, signaled an incremental approach to cutting back on abortion rights.
But that was before Justice Ruth Bader Ginsburg died in September. Her replacement by Justice Amy Coney Barrett, a conservative who has spoken out against “abortion on demand,” has changed the dynamic at the court, diminishing the chief justice’s power to guide the pace of change.
Since the retirement in 2018 of Justice Anthony M. Kennedy, a cautious supporter of abortion rights, state legislatures have enacted scores of restrictions and bans in the hope that personnel changes at the Supreme Court will spur it to reconsider its abortion jurisprudence.
President Donald J. Trump vowed to name justices who would overrule Roe, and three of his appointees now sit on the court. Two of them — Justices Neil M. Gorsuch and Brett M. Kavanaugh — dissented from the Louisiana decision last year.
The justices considered taking the Mississippi case more than a dozen times during their private conferences before deciding to do so, a possible indication of continued sharp divisions among the court’s conservatives about how boldly to address the constitutional status of abortion rights.
The Supreme Court’s next term now includes two blockbusters: the abortion case and one on whether the Second Amendment protects a constitutional right to carry guns outside the home.
“The Republican-appointed justices appear to be moving even quicker than analysts predicted to make good on their supermajority status,” Brian Fallon, the executive director of Demand Justice, a progressive advocacy group, said in a statement.
Responding to calls to expand the size of the Supreme Court to counteract recent conservative gains, President Biden has appointed a commission to consider ways to overhaul its structure and processes. Mr. Fallon said the court’s docket reflected its lack of concern about the commission’s eventual report.
“In opting to hear major cases next term on guns and now abortion,” he said, “the Roberts court conservatives have issued their verdict on President Biden’s commission: They consider it a complete nothing burger.”
The new case, Dobbs v. Jackson Women’s Health Organization, No. 19- 1392, concerns a law enacted in 2018 by the Republican-dominated Mississippi Legislature that banned abortions if “the probable gestational age of the unborn human” was determined to be more than 15 weeks. The statute, a calculated challenge to Roe, included narrow exceptions for medical emergencies or “a severe fetal abnormality.”
Lower courts said the law was plainly unconstitutional under Roe, which forbids states from banning abortions before fetal viability — the point at which fetuses can sustain life outside the womb, or about 23 or 24 weeks.
Mississippi’s sole abortion clinic sued, saying the law ran afoul of Roe and Planned Parenthood v. Casey, the 1992 decision that affirmed Roe’s core holding.
Judge Carlton W. Reeves of Federal District Court in Jackson, Miss., blocked the law in 2018, saying the legal issue was straightforward and questioning the state lawmakers’ motives.
“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,” Judge Reeves wrote. “This court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.”
“With the recent changes in the membership of the Supreme Court, it may be that the state believes divine providence covered the Capitol when it passed this legislation,” he wrote. “Time will tell. If overturning Roe is the state’s desired result, the state will have to seek that relief from a higher court. For now, the United States Supreme Court has spoken.”
A three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, affirmed Judge Reeves’s ruling. “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 E. Higginbotham wrote for the majority.
Judge James C. Ho wrote a reluctant concurring opinion expressing misgivings about the Supreme Court’s abortion jurisprudence.
“Nothing in the text or original understanding of the Constitution establishes a right to an abortion,” he wrote. “Rather, what distinguishes abortion from other matters of health care policy in America — and uniquely removes abortion policy from the democratic process established by our founders — is Supreme Court precedent.”
Ms. Fitch, Mississippi’s attorney general, urged the justices to hear the state’s appeal in order to reconsider their abortion jurisprudence. “‘Viability’ is not an appropriate standard for assessing the constitutionality of a law regulating abortion,” she wrote.
The precise question the justices agreed to decide was “whether all pre-viability prohibitions on elective abortions are unconstitutional.” Depending on how the court answers that question, it could reaffirm, revise or do away with the longstanding constitutional framework for abortion rights.
Ms. Northup, of the Center for Reproductive Rights, which represents the clinic challenging the Mississippi law, said the last possibility was alarming.
“The consequences of a Roe reversal would be devastating,” she said. “Over 20 states would prohibit abortion outright. Eleven states — including Mississippi — currently have trigger bans on the books, which would instantaneously ban abortion if Roe is overturned.”
Lawyers for the clinic said the case was straightforward. The law, they wrote, “imposes, by definition, an undue burden.”
“It places a complete and insurmountable obstacle in the path of every person seeking a pre-viability abortion after 15 weeks who does not fall within its limited exceptions,” they wrote. “It is unconstitutional by any measure.”
Previous abortion cases have considered restrictions on who can perform the procedure, what kinds of standards clinics must meet and what methods are permissible. The new case will address a far more fundamental issue, said Father Frank Pavone, the national director of Priests for Life.
“This is not a case simply on regulations of the procedure or the places where it is performed,” he said in a statement. “This goes right to the matter of prohibitions on abortion, or, as we would say, protections of the baby.”