The case, arising from a Mississippi law that bans most abortions after 15 weeks, could undermine the constitutional right to abortion 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 to abortion established in Roe v. Wade.
Activists demonstrating for and against abortion rights in front of the Mississippi state capitol in Jackson, Miss. in 2019.Credit…Andrea Morales for The New York Times
WASHINGTON — The Supreme Court on Monday said it would hear a case from Mississippi that could undermine Roe v. Wade, the 1973 decision that established a constitutional right to abortion.
The new case, concerning a state law that seeks to ban abortions after 15 weeks of pregnancy, will give the court’s new 6-to-3 majority its first opportunity to address the subject, and supporters of abortion rights reacted to the development with dismay.
“Alarm bells are ringing loudly about the threat to reproductive rights,” Nancy Northup, the president of the Center for Reproductive Rights, said in 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.”
The court will hear arguments in the case during its next term, which starts in October. A decision is not expected until the spring or summer of 2022.
Lynn Fitch, Mississippi’s attorney general, said her state’s law is constitutional. “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,” she said in a statement. “I remain committed to advocating for women and defending Mississippi’s legal right to protect the unborn.”
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 abortion restrictions, signaled an incremental approach to cutting back on abortion rights.
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.
The court’s decision to hear the Mississippi case, after considering it more than a dozen times at the justices’ private conferences, is an indication of sharp divisions among the court’s conservatives about how boldly to address the constitutional status of abortion rights.
Since the retirement in 2018 of Justice Anthony M. Kennedy, state legislatures have enacted scores of abortion restrictions and bans in the hope that personnel changes at the 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 new case, Dobbs v. Jackson Women’s Health Organization, No. 19- 1392, concerns a law enacted 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 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 around 23 or 24 weeks.
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,” wrote Judge Reeves. “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 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.”