Why the Supreme Court’s Newest Abortion Case Is a Big One

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The U.S. Supreme Court has heard multiple cases in recent years from states trying to narrow the right to have an abortion, one of the nation’s most contentious issues. The next case is more sweeping than most. With its newly strengthened conservative majority in place, the court has agreed to hear Mississippi’s bid to ban abortion in almost all cases after 15 weeks of pregnancy. That could mean overturning, or at least gutting, the landmark 1973 Roe v. Wade decision, which legalized abortion nationwide.

1. What’s at issue in the case?

The Roe v. Wade decision established that the decision to terminate a pregnancy was a woman’s choice to make in the first trimester, and that the state could regulate abortions only later. In the Planned Parenthood v. Casey case in 1992, the Supreme Court revisited the timing issue, saying women have the right to abortion without undue interference before a fetus is viable -- that is, capable of living outside the womb. The court didn’t pinpoint when viability occurs but suggested it was around 23 or 24 weeks. In 2018, the Mississippi legislature voted to outlaw most abortions after 15 weeks. The ban, which makes exceptions only in cases of severe fetal abnormality or major health risk to the mother, was challenged by the state’s only abortion facility, the Jackson Women’s Health Organization, and deemed unconstitutional by a federal district judge and federal appeals court. The state of Mississippi appealed to the Supreme Court, arguing that viability is “not an appropriate standard for assessing the constitutionality” of abortion laws.

2. What’s the time frame?

The court will hear the case in its nine-month term starting in October. The parties, outside groups and probably the administration of President Joe Biden will file briefs that could sharpen the legal issues and lay out the stakes. Arguments probably will be heard late this year, with a ruling due by June 2022. The timing means that abortion and the court’s shift to the right in recent years could become central issues in next year’s midterm elections.

3. Is the Supreme Court ready to roll back abortion rights?

Recent changes in the court’s composition make that very much a possibility. Three appointments to the court made by Biden’s predecessor, Donald Trump, have given it a 6-3 conservative majority. And Trump’s last two appointees, Justices Brett Kavanaugh and Amy Coney Barrett, replaced justices who supported the core right to abortion. If Kavanaugh and Barrett are willing to back Mississippi, abortion opponents might not even need the vote of the sixth conservative, Chief Justice John Roberts.

4. What could a victory by Mississippi mean?

A decision throwing out the 1992 viability standard could immediately mean tighter abortion restrictions in a number of states. The Guttmacher Institute, which monitors and advocates for abortion rights, counts 16 states that have attempted to ban at least some abortions before viability but have been stopped by a court order. A Supreme Court ruling could revive many of them, particularly if the majority suggests states can go beyond Mississippi’s 15-week ban.

The Reference Shelf

  • Related QuickTakes on the evolution of the abortion fight and a Louisiana law that reached the Supreme Court.
  • The Guttmacher Institute’s examination of state battles over abortion.
  • Cornell Law School’s primer on Roe v. Wade.

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