Supreme Court to Hear Arguments on Mississippi Abortion Law

Before recent changes in the court’s membership, the prospect of overruling Roe would have seemed far-fetched. But President Donald J. Trump’s three appointees have reshaped the court, which now has a six-justice conservative supermajority. Mr. Trump had vowed to name justices who would overrule Roe.

The most significant change was the most recent one. Justice Ruth Bader Ginsburg, who died last year, was a committed supporter of abortion rights, saying that access to the procedure was crucial to women’s equality. Her replacement, Justice Amy Coney Barrett, is a conservative who has spoken out against “abortion on demand.”

Emboldened by the changes in the court’s personnel, state legislatures have enacted scores of restrictions and bans, many of them at odds with existing precedent.

The case before the justices, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, concerns a law enacted in 2018 by the Republican-dominated Mississippi Legislature that banned abortions if “the probable gestational age of the unborn human” was determined to be more than 15 weeks. The statute, a calculated challenge to Roe, included narrow exceptions for medical emergencies or “a severe fetal abnormality.”

Mississippi’s sole abortion clinic sued, saying the law ran afoul of Roe and Planned Parenthood v. Casey, the 1992 decision that affirmed Roe’s core holding.

Lower courts said the law was plainly unconstitutional under Roe, which forbids states from banning abortions before fetal viability — the point at which fetuses can sustain life outside the womb, or about 23 or 24 weeks.

Judge Carlton W. Reeves of Federal District Court in Jackson, Miss., blocked the law in 2018, saying the legal issue was straightforward and questioning the state lawmakers’ motives.

“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,” Judge Reeves wrote. “This court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.”

“With the recent changes in the membership of the Supreme Court, it may be that the state believes divine providence covered the Capitol when it passed this legislation,” he wrote. “Time will tell. If overturning Roe is the state’s desired result, the state will have to seek that relief from a higher court. For now, the United States Supreme Court has spoken.”

A three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, affirmed Judge Reeves’s ruling. “In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and reaffirmed) a woman’s right to choose an abortion before viability,” Judge Patrick E. Higginbotham wrote for the majority.

Judge James C. Ho wrote a reluctant concurring opinion expressing misgivings about the Supreme Court’s abortion jurisprudence.

“Nothing in the text or original understanding of the Constitution establishes a right to an abortion,” he wrote. “Rather, what distinguishes abortion from other matters of health care policy in America — and uniquely removes abortion policy from the democratic process established by our founders — is Supreme Court precedent.”

The precise question the justices agreed to decide was “whether all pre-viability prohibitions on elective abortions are unconstitutional.” Depending on how the court answers that question, it could reaffirm, revise or do away with the longstanding constitutional framework for abortion rights.

In Mississippi’s petition seeking Supreme Court review, state officials told the justices that “the questions presented in this petition do not require the court to overturn Roe or Casey,” though lawyers for the state did raise the possibility in a footnote. Once the court agreed to hear the case, the state shifted its emphasis and began a sustained assault on those precedents.

The court is likely to issue its decision in late June or early July, as the 2022 midterm elections are gearing up, ensuring that the debate over abortion will remain a political flash point.