The Supreme Court on Wednesday will take up the most important showdown over abortion rights in at least three decades, a direct challenge out of Mississippi to Roe v. Wade's landmark holding that the Constitution provides a right of access to abortion.
It's the case opponents of abortion have long sought and advocates of abortion rights have dreaded, coming before a strongly conservative lineup of justices. Three were appointed by then-President Donald Trump, who said he would choose nominees willing to overturn Roe.
"If Roe is reversed, almost half the states in America would strictly limit abortion and perhaps ban it altogether," said Nancy Northup, the president and chief executive of the Center for Reproductive Rights, which supports abortion rights.
The court has yet to rule in a separate case on a Texas law known as S.B. 8 that bans abortion after about the sixth week of pregnancy. The justices must decide whether two lawsuits challenging the unique structure of that law, which delegates enforcement to private lawsuits, can proceed.
The issue of whether the Constitution provides a right to seek an abortion is not before the court in the Texas challenges, but it is squarely presented in Wednesday's case.
At the heart of it is a Mississippi law — passed in 2018 but blocked by the lower courts — that would ban most abortions after 15 weeks of pregnancy, allowing them only in medical emergencies or cases of severe fetal abnormality. Supporters say the law is intended to regulate "inhumane procedures" and argue that a fetus is capable of detecting and responding to pain by that point.
The case presents an attack on the court's landmark Roe v. Wade ruling in 1973 and a follow-on decision in Planned Parenthood v. Casey about two decades later. The court held that a state can impose some restrictions on abortion provided they do not present an "undue burden," but cannot ban the procedure before fetal viability, generally considered to be 23 to 24 weeks into the pregnancy.
Mississippi said it must be free to take account of advancements in medical knowledge that would shift the point of viability earlier in the pregnancy. But abortion rights advocates said viability, defined as the time at which a life could be sustained outside the womb, has remained the same since Roe was decided.
In its submissions, Mississippi said the Supreme Court made a fundamental error in its landmark abortion rulings, arguing, "Nothing in constitutional text, structure, history, or tradition supports a right to abortion."
The state also said the court was wrong to rule that state laws outlawing abortion violated a woman's right to privacy. "Nowhere else in the law does a right of privacy or a right to make personal decisions provide a right to destroy a human life," it said in its brief to the court.
And the state said there is no force to the argument that the rulings should be allowed to stand because the nation has come to rely on them as precedent, a legal principle known as stare decisis. The abortion rulings "placed this court at the center of a controversy that it can never resolve," it said.
As a fallback, Mississippi said if the court chooses not overrule Roe and Casey, it should at least say that banning abortion after 15 weeks does not unduly burden the right to the procedure, since most abortions are performed by that point, and Mississippi's only abortion provider does not offer the procedure after 16 weeks of pregnancy.
The Center for Reproductive Rights, representing opponents of the law, said in its briefs that "because pregnancy so intensely impacts a woman's bodily integrity, her liberty interests are categorically stronger than any state interest" until the point of viability.
FOR SUBSCRIBERSThe prosecutor at the center of the Cornell maelstrom
FOR SUBSCRIBERSIt’s rarely been harder for people to find new jobs
FOR SUBSCRIBERSCBP leaders cut out of Trump ad buy decision
FOR SUBSCRIBERSA harrowing ordeal aboard an Israel-bound plane
Nearly 1 in 4 American women decide to end a pregnancy during their lives, and tens of thousands seek abortion after 15 weeks, the group said.
FOR SUBSCRIBERSThe prosecutor at the center of the Cornell maelstrom
FOR SUBSCRIBERSIt’s rarely been harder for people to find new jobs
FOR SUBSCRIBERSCBP leaders cut out of Trump ad buy decision
FOR SUBSCRIBERSA harrowing ordeal aboard an Israel-bound plane
"Two generations, spanning almost five decades, have come to depend on the availability of abortion, and the right to make this decision has been further cemented as critical to gender equality," it said.
The state "does not meaningfully engage with the personal autonomy and bodily integrity interests that underpin constitutional protection for the right to decide whether to continue a pregnancy," the group added.
As for abortion after 15 weeks, the procedure at that stage is sought by about 100 patients a year from the Mississippi providers, it said.
The group also said the Supreme Court has been through all of this before, because it was repeatedly asked to overrule Roe and to abandon the viability analysis. Any decision now to uphold the state's ban after 15 weeks "would signal that anything goes — or at least that any ban would have a chance of surviving in court," it said.
In its brief, the Biden administration leaned heavily on the stare decisis argument.
"Roe's central holding remains clear and workable, and it has only been further reinforced by intervening legal and factual developments,” it said. “And the passage of another three decades means that every American woman of reproductive age has grown up against the backdrop of the right secured by Roe and Casey, which has become even more deeply woven into the nation's social fabric."
The case has attracted intense interest, with more than 140 friend-of-court briefs submitted by organizations ranging from the Billy Graham Evangelistic Association, backing Mississippi, to the Young Women’s Christian Association, on the side of the abortion providers. The Susan B. Anthony List, which opposes abortion, launched a $2.5 million TV and digital advertising campaign in the days leading up to Wednesday's oral arguments.
In a Washington Post-ABC News poll conducted in early November, 60 percent of respondents said the Supreme Court should uphold the Roe decision, while 27 percent said the court should overturn it. The results, the poll said, reflect "attitudes that are consistent in polls dating to 2005."
The court is expected to issue its ruling by early July.
