The Supreme Court last month appeared to signal that it would move quickly on a decision when it fast-tracked a Texas abortion case to oral arguments. But more than three weeks later, the justices have remained silent on the issue, while an even more consequential abortion case looms.
Next week, justices are set to hear arguments about a challenge to a Mississippi law that bans abortions at 15 weeks of pregnancy. Dobbs v. Jackson Women’s Health Organization is a challenge to a Mississippi law that pro-choice advocates have called “blatantly unconstitutional,” banning abortion after 15 weeks of pregnancy. Unlike the Texas case, which concerned whether the federal government had the right to intervene in the law given its unique enforcement mechanism, the Mississippi case is a direct challenge to Roe v. Wade.
The landmark 1973 decision affirmed a constitutional right to an abortion before fetal viability, the age at which a fetus can survive outside of the womb, which is generally understood by experts to mean 24 weeks of pregnancy. Like the Texas law, the Mississippi rule attempts to set an earlier limit on abortion. But while the Texas law relies on private citizens to enforce it, making it difficult to challenge in court, the Mississippi law would be enforced by the state – although it’s been blocked by lower courts from taking effect.
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In March 2018, former-Gov. Phil Bryant signed the Gestational Age Act into law, banning abortions after 15 weeks of pregnancy without exceptions for rape or incest. Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, filed a lawsuit in response, arguing that “under decades of United States Supreme Court precedent, the state of Mississippi cannot ban abortion prior to viability, regardless of what exceptions are provided to the ban.”
A federal district court promptly blocked enforcement of the law, later striking down the ban on the grounds that it breached the precedent set in Roe, concluding, “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.” The 5th Circuit Appeals court, one of the most conservative courts in the nation, later affirmed the district court’s decision.
Mississippi filed a petition to the Supreme Court in the summer of 2020. In May 2021, the high court with a newly strengthened conservative 6-3 majority, announced it would hear the case, considering whether all pre-viability abortions are unconstitutional. In July, the state directly asked the high court to overturn Roe v. Wade.
Other Republican-led states have made similar attempts in recent years, perhaps to coax the Supreme Court into reconsidering Roe, implementing pre-viability bans on abortion as early as six weeks. The majority of the laws have been struck down in appeals courts before taking effect in states, however, due to their direct opposition to the precedent established in Roe.
But if the conservative-majority Supreme Court were to weaken or overturn the landmark ruling, given the opportunity in a case such as the Dec. 1 Mississippi case, more than half of states would be implicated.
According to an analysis from the Guttmacher Institute, if Roe were weakened or overturned, 21 states would almost certainly ban abortion as quickly as possible, based on current laws and constitutional amendments already in place. Nine of those states have a pre-Roe abortion ban in place, while 12 states have “trigger” bans that would outlaw abortion if Roe were overturned. Five states have enacted near-total abortion bans in the decades since the landmark case and 12 states have a ban on abortions after six weeks of pregnancy, including Texas – the only law in effect. And some states have more than one ban in place. The group argues that five more states – Florida, Indiana, Montana, Nebraska and Wyoming – would likely ban abortion statewide as well, bringing the total to more than half of all states.
The high court has previously struck down appeals from other states over pre-viability abortion bans. As recently as June 2020, in a 5-4 decision, the court struck down a Louisiana law that would have restricted abortion access in the state. But Justice Amy Coney Barrett’s addition to the court months later bolstered the conservative majority and diminished the power of Chief Justice John Roberts’ swing vote..
Next week’s arguments come amid what has been called the most restrictive year for abortion access since the 1973 landmark case.
The Supreme Court last month appeared to signal that it would move quickly on a decision when it fast-tracked a Texas abortion case to oral arguments. But more than three weeks later, the justices have remained silent on the issue, while an even more consequential abortion case looms.
Next week, justices are set to hear arguments about a challenge to a Mississippi law that bans abortions at 15 weeks of pregnancy. Dobbs v. Jackson Women’s Health Organization is a challenge to a Mississippi law that pro-choice advocates have called “blatantly unconstitutional,” banning abortion after 15 weeks of pregnancy. Unlike the Texas case, which concerned whether the federal government had the right to intervene in the law given its unique enforcement mechanism, the Mississippi case is a direct challenge to Roe v. Wade.
The landmark 1973 decision affirmed a constitutional right to an abortion before fetal viability, the age at which a fetus can survive outside of the womb, which is generally understood by experts to mean 24 weeks of pregancy. Like the Texas law, the Mississippi rule attempts to set an earlier limit on abortion. But while the Texas law relies on private citizens to enforce it, making it difficult to challenge in court, the Mississippi law would be enforced by the state – although it’s been blocked by lower courts from taking effect.
In March 2018, former-Gov. Phil Bryant signed the Gestational Age Act into law, banning abortions after 15 weeks of pregnancy without exceptions for rape or incest. Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, filed a lawsuit in response, arguing that “under decades of United States Supreme Court precedent, the state of Mississippi cannot ban abortion prior to viability, regardless of what exceptions are provided to the ban.”
A federal district court promptly blocked enforcement of the law, later striking down the ban on the grounds that it breached the precedent set in Roe, concluding, “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.” The 5th Circuit Appeals court, one of the most conservative courts in the nation, later affirmed the district court’s decision.
Mississippi filed a petition to the Supreme Court in the summer of 2020. In May 2021, the high court with a newly strengthened conservative 6-3 majority, announced it would hear the case, considering whether all pre-viability abortions are unconstitutional. In July, the state directly asked the high court to overturn Roe v. Wade.
Other Republican-led states have made similar attempts in recent years, perhaps to coax the Supreme Court into reconsidering Roe, implementing pre-viability bans on abortion as early as six weeks. The majority of the laws have been struck down in appeals courts before taking effect in states, however, due to their direct opposition to the precedent established in Roe.
But if the conservative-majority Supreme Court were to weaken or overturn the landmark ruling, given the opportunity in a case such as the Dec. 1 Mississippi case, more than half of states would be implicated.
According to an analysis from the Guttmacher Institute, if Roe were weakened or overturned, 21 states would almost certainly ban abortion as quickly as possible, based on current laws and constitutional amendments already in place. Nine of those states have a pre-Roe abortion ban in place, while 12 states have “trigger” bans that would outlaw abortion if Roe were overturned. Five states have enacted near-total abortion bans in the decades since the landmark case and 12 states have a ban on abortions after six weeks of pregnancy, including Texas – the only law in effect. And some states have more than one ban in place. The group argues that five more states – Florida, Indiana, Montana, Nebraska and Wyoming – would likely ban abortion statewide as well, bringing the total to more than half of all states.
The high court has previously struck down appeals from other states over pre-viability abortion bans. As recently as June 2020, in a 5-4 decision, the court struck down a Louisiana law that would have restricted abortion access in the state. But Justice Amy Coney Barrett’s addition to the court months later bolstered the conservative majority and diminished the power of Chief Justice John Roberts’ swing vote..
Next week’s arguments come amid what has been called the most restrictive year for abortion access since the 1973 landmark case.