The moment that opponents of abortion have been awaiting for nearly five decades may have arrived at the Supreme Court this morning. The Justices announced that they will decide a Mississippi case that could lead to the end of abortion as a constitutional right, or at least could allow the most stringent restriction so far on that right.
At issue is the constitutionality of a 2018 state law that would ban abortion after the fetus has reached the “gestational age” of 15 weeks – a point that is well before the fetus would survive if delivered outside the womb. The only exception would be a “medical emergency” or a fetal deformity that would prevent it from ever surviving.
The state legislature made clear that its aim was to stop “elective” abortions after 15 weeks and sponsors indicated that the law was meant to test Roe v. Wade.
Since Roe v. Wade was decided in 1973, the Court has never departed from one basic constitutional rule: while states may impose some limits on abortion after the first trimester (the first 12 weeks) of pregnancy, they cannot put a total ban on the procedure unless the fetus has reached “viability.” For many years, that meant no flat ban until about the 24th week; many hospitals have an abortion policy of attempting to save the fetus only if it has reached that point.
Lower courts struck down the Mississippi law on the simple basis that it violated that constitutional rule. Nothing else mattered, according to those lower court rulings.
In the new appeal, which will be decided in the Court’s next term (which starts in October), the state’s officials are urging the Supreme Court to abandon that rule. While they do not ask the Court directly to overrule Roe v. Wade altogether, they argue that Roe should be cast aside if it does not allow states to stop abortions before viability.
Although the appeal sought to raise three questions, the Justices agreed to confine their review to the broadest of those three: “Whether all pre-viability prohibitions on elective abortions are unconstitutional?”
Even though that language may suggest that all abortions before 15 weeks also were at issue under Mississippi’s law, the actual text of that law says explicitly that it is intended to ban abortions only after 15 weeks. Adding to the potential uncertainty of the scope of the law is a paragraph which says that the legislature, by enacting this ban, did not mean to recognize any right to an abortion at any point in pregnancy. That paragraph seems likely to have been added to make a political statement that the legislature would never allow any abortions, if that were a constitutional option.
The text of the state law runs to ten pages, with significant parts of its space taken up with “findings” suggesting that the fetus begins developing human-like characteristics quite early in pregnancy, with a heartbeat, for example, at about six weeks. Those assertions are designed to make the case for strong state action to protect fetal life, even though the law does not attempt a flat ban until the 15th week. There also are “findings” about the risks of abortion to pregnant women’s health.
It has been clear for some weeks that the Supreme Court was having a difficult time making up its mind whether to take on such a bold attempt to restrict abortion rights. It took its first look at the Mississippi case in late September; at 20 of its private conferences since then, it was scheduled to examine it again. Whether it discussed it at any length at those sessions is unknown to anyone outside the Court. The vote to accept the case was made at the private session last Thursday and announced this morning.
It takes only four votes among the Justices to grant review of a case. In a case as potentially significant as this one, the Justices may want to be assured that more than four want to rule on it, so as to set up a potential five votes to make a majority for a definitive result.
Even though the Court now has six Justices with strong conservative views, it still appeared to have been a struggle for them to settle on whether to take on the Mississippi case.
The case will be heard and argued during the first part of 2022, meaning that abortion rights may become an issue in next year’s election cycle. Ironically, the Court’s most significant abortion decision since Roe v. Wade came in the presidential election year of 1992, and abortion rights advocates intentionally shaped their arguments in that case to make it a test of whether the Court would continue to follow the Roe precedent so that abortion rights would figure in the political realm, too.
In the 1992 decision, in the case of Planned Parenthood v. Casey, the Court reaffirmed much of the Roe precedent. But it established a somewhat more tolerant standard in judging the constitutionality of anti-abortion laws – a test of whether such a law imposed an “undue burden” on the right to end a pregnancy. The use of that test has enabled some abortion restrictions to survive, but none as broad as the one now at issue in the new Mississippi case.
Lawyers involved in the case will now begin work on more extensive legal briefs. The Court will hold a hearing before beginning deliberations on a ruling. The decision is not likely to emerge until next May or June.