By Jessica Lea -May 17, 2021
The Supreme Court of the United States (SCOTUS) has agreed to hear a Mississippi abortion case that could set the Court up to challenge its previous landmark decisions in Roe v. Wade and Planned Parenthood vs. Casey.
“BREAKING: The Supreme Court agrees to take up a major abortion case that will give the court an opportunity to reconsider Roe v. Wade and Planned Parenthood v. Casey,” announced the SCOTUSblog on Twitter. “The case involves the constitutionality of Mississippi’s ban on most abortions after 15 weeks of pregnancy.”
The Supreme Court will hear the case, Dobbs v. Jackson Women’s Health Organization, this October and will likely make a decision by June 2022.
SCOTUS to Consider Mississippi Abortion Ban
In 2018, the state Mississippi passed a law banning abortions after 15 weeks, except in the case of health emergencies or fetal abnormalities. Jackson Women’s Health Organization, the state’s only licensed abortion clinic, sued to challenge the law on the grounds that Roe v. Wade and Planned Parenthood v. Casey protect the right to an abortion prior to the viability of the fetus. In other words, the Court’s precedent indicates that if a baby is not developed enough to survive outside the womb, it can be aborted.
Fetal viability is generally accepted to occur around 24 weeks of pregnancy. However, a 2001 study notes, “Viability exists as a function of biomedical and technological capacities, which are different in different parts of the world. As a consequence, there is, at the present time, no worldwide, uniform gestational age that defines viability.” According to the study, the chance of a baby surviving outside the womb at 23 weeks is 10%, while the chance of survival at 24 weeks is “about 50%.”
Both a federal court and the U.S. Court of Appeals for the 5th Circuit upheld the abortion provider’s position that SCOTUS has consistently supported a right to an abortion prior to fetal viability. Hillary Schneller, an attorney representing Jackson Women’s Health Organization, asked SCOTUS not to take the case, saying, “In an unbroken line of decisions over the last fifty years, this Court has held that the Constitution guarantees each person the right to decide whether to continue a pre-viability pregnancy…Nothing about this case warrants this Court’s intervention.”
For its part, the state is questioning viability as a standard for the permissiveness of abortion, arguing that it keeps states from defending the health of the mother and the life of the unborn child. Said the state, “This case presents a substantial and important question of federal law: Whether a law which bars some, but not all, abortions after a gestational age of 15 weeks, is categorically unconstitutional, without any comparison of the potential benefits and burdens.”
The state also said, “To be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey,” but rather to “reconcile a conflict in its own precedents.”
It remains to be seen whether the Court’s decision about the Mississippi abortion case could lead to overturning Roe or Casey. To some, the very fact that fetal viability is in question means that it would do so. Another reason the case is significant because it is the first time the nation will see how Trump appointee Amy Coney Barrett will vote on a major abortion case. It will also be the first time all three Trump-appointed Supreme Court justices, (Barrett, Gorsuch, and Kavanaugh) will decide a major abortion case together on a Court that has a 6-3 conservative majority.
In early 2019, when SCOTUS struck down a law that would have limited doctors in Louisiana to providing abortions only if they had “admitting privileges” to a hospital within 30 miles, Kavanaugh and Gorsuch dissented, voting to put the law into effect.
March for Life works for the day when abortion is unthinkable, but currently the United States is one of only seven countries – including China and North Korea – that allows abortions through all nine months of pregnancy. An overwhelming majority of Americans agree that this goes way too far, in fact 70% think abortion should be limited to – at most – the first three months of pregnancy. States should be allowed to craft laws that are in line with both public opinion on this issue as well as basic human compassion, instead of the extreme policy that Roe imposed.”