WASHINGTON — When the Supreme Court decided May 17 to take up a challenge to a Mississippi abortion law, it brought abortion back to the front burner months before the court will hear oral arguments about it this fall.
The court’s announcement was not unexpected. For months, people on both sides of the issue have been wondering when the court would take up the Mississippi appeal and speculating about why there was a delay.
The case initially came to the court in 2020. The justices repeatedly rescheduled, reviewing it until this past January, and then they still considered it 12 more times before announcing they would take it up next term.
Their agreement to hear the appeal means at least four of the nine justices found it had merit.
The case, Dobbs v. Jackson Women’s Health Organization, is an appeal from Mississippi to keep its ban on abortions after 15 weeks of pregnancy, which was struck down by a federal district court in Mississippi in 2018 and upheld a year later by the New Orleans-based U.S. Court of Appeals for the 5th Circuit.
In announcing they would take this case, the Supreme Court justices said they would only review one of the three questions presented to them: “Whether all previability prohibitions on elective abortions are unconstitutional.”
The viability aspect, when a fetus is said to be able to survive on its own, is key here because the Supreme Court has consistently ruled that states cannot restrict abortion before the 24-week mark. The ban on abortions after 15 weeks is more restrictive than current law.
Although the Mississippi case is not asking the court to overrule Roe v. Wade — the 1973 court case which legalized abortion — people on both sides of the issue are expressing either alarm or elation that this could happen.
If the court sides with Mississippi, it would be the first time the court would allow an abortion ban before the point of viability and could lay the groundwork for other abortion restrictions which other states could follow or it could push states to enact more abortion restrictions.
Besides Mississippi, 15 other states have tried to ban abortions before viability, but they have been blocked in court, according to the Guttmacher Institute, which conducts research on abortion and reproductive health.
In a May 19 opinion piece in The Wall Street Journal, Clarke Forsythe, senior counsel at Americans United for Life, said: “Many Americans might be surprised to know that since Roe in 1973, the Supreme Court hasn’t addressed an actual abortion prohibition that applied before fetal viability.” He also said many scholars “on both sides of the abortion issue agree that the high court has never given an adequate rationale for its viability rule.”
Kat Talalas, assistant director for pro-life communications at the U.S Conference of Catholic Bishops, said this is the biggest abortion case to come before the court in almost 30 years. She was referring to the court’s 1992 decision in Casey v. Planned Parenthood, which affirmed Roe and also stressed that a state regulation on abortion could not impose an “undue burden” for a woman “seeking an abortion before the fetus attains viability.”
Talas said the justices in the Mississippi case could establish criteria other than viability, such as fetal pain, to restrict abortions or they could “overturn Roe and Casey (decisions) completely.”
A brief submitted to the court from the Mississippi Catholic dioceses of Jackson and Biloxi urging the justices to take this case similarly stressed the need to consider fetal pain. It said the court should “find that the state’s interest in protecting unborn children who have the capacity to feel pain is sufficiently compelling to support a limited prohibition on abortion.”
The brief also urged that a “sense of morality, and indeed, logic, must prevail in the courts on this issue. How is it that Mississippi law recognizes that an unborn baby can be a victim of a crime, and can have property rights, and yet the label of personhood at 15 weeks gestation is denied them?”
What the court will do, of course, remains a mystery. Many legal experts and advocates on both sides of the issue expect the court will away from the Roe decision.
In anticipating this could eventually happen, 10 states have what are called “trigger laws,” which in effect that would automatically ban abortions in the first and second trimesters if the Roe decision is overturned.
Plenty have pointed out this is the first abortion case before the court since the appointment of Justice Amy Coney Barrett, and many see her as sympathetic to anti-abortion legislation.
With the timing of an opinion in this case, before the end of June next year, politics also could play a role with the country heading into midterm elections.
White House press secretary Jen Psaki told reporters May 17 after the court said it was taking up this case that the administration was “committed to codifying” Roe but did not say how legislation supporting that would get through a divided Congress.
Commentators have said it is unlikely that Congress will be able to pass a law keeping the precedent set by the Roe decision because it would require the votes of at least 10 Republican senators and so far, only Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska have said they would support it.
Follow Zimmermann on Twitter: @carolmaczim