The Supreme Court will take up the most important abortion case in 30 years as it considers a state’s request to overturn Roe v. Wade

In legalese, the doctrine the justices will consider on Wednesday is called stare decisis. It derives from the Latin “stare decisis et non quieta movere” meaning, roughly, to stand by things decided and not disturb the calm.

For some, stare decisis is critical because it represents the accumulated wisdom of judges, preserves stability in the law and promotes an evenhanded and consistent development of legal principles.

For others, like Justice Clarence Thomas, it is overrated at times, especially as he wrote in 2019, if it gives the “veneer of respectability” to what he called “demonstrably incorrect precedents.”

Wednesday’s case will bring the debate to a head as the court considers a federal appeals court decision that struck down the Mississippi law.

The 5th US Court of Appeals — one of the most conservative courts in the country — invalidated the Mississippi law, holding it was in in direct contravention of Roe.

Mississippi appealed the decision to the Supreme Court. After the justices agreed to take up the dispute, the state attorney general made the big ask: “This Court should overrule Roe,” because the decision has proven “hopelessly unworkable.” Roe, and another case called Planned Parenthood v. Casey decided in 1992 have “inflicted profound damage,” the state said.

“Reliance interests do not support retaining them,” the state argued. “And nothing but a full break from those cases can stem the harms they have caused.”

Supporters of abortion rights, were quick to respond, emphasizing from the start how the country has come to rely on Roe.

“Two generations — spanning almost five decades — have come to depend on the availability of legal abortion and the right to make this decision has been further cemented as critical to gender equality,” Julie Rikelman, a lawyer representing Jackson Women’s Health Organization, said in briefs.

And she took aim at the new conservative majority. She said that if the court were to suddenly overrule Roe, after some 50 years, the new court would be turning its back on its institutional legitimacy.

But O. Carter Snead, a Notre Dame Law School professor, believes the court would be repairing its institutional legitimacy by overruling Roe. “The Court’s abortion jurisprudence is completely untethered from the Constitution’s text, history and tradition,” he said in an amicus brief supporting Mississippi. “It has imposed an extreme, incoherent, unworkable, and antidemocratic legal regime for abortion on the nation for several decades.”

If the Supreme Court overturns Roe v. Wade, it is likely that women seeking the procedure in wide swaths of the South and Midwest would need to drive hundreds of miles to find the nearest abortion clinic.

That is because several states already have laws on the books that could ban abortion as soon the Supreme Court reverses its precedent protecting abortion rights. In a dozen states – many of them concentrated in the South — those laws include so-called “trigger laws,” which are bans that are “triggered” in the event of a Roe reversal.

Even more states, including several scattered across the Midwest, have passed bans or extreme limits on the procedure that are blocked now due to court orders that may be lifted if Roe is overturned. 

The impact of a Roe reversal would be felt not just in red states poised to ban or limit abortion, but in blue states that would see a flood of out of state patients.

The Guttmacher Institute, a think tank that favors abortion rights, analyzed driving distances to the nearest clinic in a scenario that the 26 states most likely to ban abortion were able to do so.

The study found that states like Illinois and California would be major “destination” states for abortion, because for millions of women across the country, those states would be the location of the nearest clinic if abortion bans in their states were allowed to be implement.

Read more here.

Former Vice President Mike Pence, a Republican with a strong anti-abortion stance, has long criticized Roe v. Wade and urged the Supreme Court to restrict abortion access. 

His group, Advancing American Freedom, filed an amicus brief in July along with Minnesota Family Council, The Family Leader (Iowa), Center for Political Renewal, Family Heritage Alliance, and Nebraska Family Alliance, asking the Supreme Court to uphold Mississippi’s law and overturn Roe v. Wade.     

During a speech at the National Press Club on Tuesday, Pence criticized the Supreme Court’s “misguided decision” on Roe v. Wade and said the decision has “inflicted a tragedy not only on our nation but humanity.”

He also expressed optimism that Roe v Wade will be overturned in the future and claimed that if the Supreme Court overturns the decision, it would not “ban abortion in America,” but instead send the issue back to the states.  

Pence has touted his record on abortion and as vice president in 2017, cast the tie-breaking vote in the Senate allowing states to withhold federal money from organizations that provide abortion services, including Planned Parenthood. 

The Supreme Court is set to hear oral arguments soon on a case concerning a Mississippi law that bans most abortions after 15 weeks of pregnancy.

Mississippi is asking the justices to uphold the ban and overturn Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The state calls those landmark decisions “hopelessly unworkable” in legal briefs.

Arguments are scheduled to last for 70 minutes, but if past is precedent, the court will go overtime.

These are the key players of today’s arguments and how the event is expected to unfold:

At 10 a.m. ET, Mississippi Solicitor General Scott G. Stewart – who served as a law clerk for Justice Clarence Thomas in 2015 — will take the podium and his former boss is likely to ask the first question.

Thomas— who was largely silent from the bench for years — has been a vocal participant at oral arguments this term after the Court changed its questioning format.

Thomas has repeatedly urged the court to overturn Roe v. Wade, saying that there is no right to an abortion found in the Constitution. Earlier this year he was praised for his position on “unborn life” by Senate Minority Leader Mitch McConnell, a Kentucky Republican.

When the justices agreed to hear the Mississippi case last May after months of closed door deliberations, the question they agreed to decide was whether “all pre-viability prohibitions on elective abortion are unconstitutional.”

But when Mississippi filed its opening brief it went much further asking the justices to overturn Roe and Casey. Some justices might see that as a bait and switch forcing them to address a much bigger question. Watch Chief Justice John Roberts who might express institutional concerns with overturning a decision from so long ago.

All eyes will also be on Justice Amy Coney Barrett, whose vote to take up the case was likely critical. The court is now composed of three of former President Trump’s nominees, recall Trump vowed to appoint “pro-life” judges.

After Stewart wraps, Julie Rikelman, the Litigation Director at the Center for Reproductive Rights which is representing Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, will be next. She is arguing on behalf of Jackson Women’s Health Organization, the last abortion clinic in the state. In March of 2020, Rikelman won a case striking down a Louisiana abortion law when Roberts sided with the liberals on the court.

Today, Rikelman will forcefully argue that the court should “reject the invitation to jettison” a half century of precedent. In briefs, she zeroed in on the fact that many of Mississippi’s current arguments were rejected by the court some 30 years ago in Casey.

After Rikelman, Solicitor General Elizabeth B. Prelogar, a former clerk to the late Justice Ruth Bader Ginsburg and Justice Elena Kagan, will step up in support of the clinic. Prelogar, the Biden administration’s top lawyer before the Supreme Court, said in legal papers that overturning Roe and Casey would “be a profound disruption.” Prelogar urged the justices to consider what would happen if the justices decided to return the issue to the states.

Because Mississippi brought the challenge, Stewart will have the chance to return to the podium. He’s likely to reiterate his main point: “Under Roe and Casey the Judiciary mows down state law after state law, year after year, on a critical policy issue,” he argued in briefs. “That is dangerously corrosive to our constitutional system,” he wrote.

Judge Carlton W. Reeves, a District Court judge who sits on the US District Court for the Southern District of Mississippi, blocked the Mississippi abortion law from going into effect.

Reeves, an Obama nominee, said the law was one of the most restrictive abortion laws in the country.

But then Reeves went further. “So why are we here?” he asked. In a footnote he took after the state, “This Court concludes that the Mississippi Legislature’s professed interest in ‘women’s health’ is pure gaslighting.”

The Fifth Circuit Court of Appeals, one of the most conservative courts in the country, also ruled against the Mississippi law.

“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed and re-affirmed) a woman’s right to choose an abortion before viability,” a panel of judges on the 5th US Circuit Court of Appeals said in December 2019. “States may regulate abortion procedures prior to viability so long as they do not ban abortions,” the court held and concluded that “the law at issue is a ban.”

If the Court does overturn Roe v. Wade, the issue will return to the states.

“Based on our analysis we think 26 states will likely move to ban abortion if Roe is overturned,” Planned Parenthood says. “Of those 26, 12 states have trigger laws [a law passed after Roe that would ban all or nearly all abortions if Roe were overturned] and 9 have pre-Roe bans on the book. The others have historically hostile legislature or shifting judicial make-ups that put abortion access at risk.”

In a biting dissent two years ago, when the Supreme Court overturned a ruling from 1979, Justice Stephen Breyer wrote that the decision “can only cause one to wonder which cases the court will overrule next.”

Breyer is about to find out.

The justices are gathering Wednesday to consider a momentous question that has roiled the political sphere for decades and become a major feature of every modern-day judicial confirmation hearing: should Roe v. Wade be overturned?

Front and center at oral arguments will be a Mississippi law that bars abortion after 15 weeks of pregnancy, that has the court considering whether a woman has a constitutional right to end a pregnancy.

But lurking behind the law is another question that goes to the stability of the court as an institution. The justices will also weigh in on how seriously they should consider the very fact that Roe has been on the books for nearly a half-century.

Put another way: if the court uses cases as building blocks to construct the rule of law, what happens when one block — put in place in 1973 — is yanked out?

As much as some of the justices might wish they were writing on a blank slate, they cannot pretend they haven’t dealt with Roe in numerous cases over the years. Equally important, several of the justices have at various times laid out the factors they weigh when voting to overturn precedent.

How the court grapples with that question could illuminate the way forward for the court and its aggressive right flank as it grapples with other divisive topics in the future.

Read more about Roe v. Wade here.

The Supreme Court will hear a case concerning a Mississippi abortion law today, teeing up one of the most substantial cases of the term in which the justices are being asked to overturn Roe v. Wade.

The Biden administration urged the Supreme Court in September to uphold Roe v. Wade – the 1973 landmark Supreme Court decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy — and to invalidate the Mississippi law that bars most abortions after 15 weeks.

Acting Solicitor General Brian H. Fletcher said in a friend-of-the-court briefs filed in advance of the arguments that the justices should reject a direct challenge to the landmark opinion.

In a separate filing, he also asked that the United States be granted time to argue its position during oral arguments.

Overruling Roe, he said, “would harm women (and their partners) who have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fall.”

The Mississippi case — the most important set of abortion-related oral arguments the court has heard since 1992 — comes as states across the country, emboldened by the conservative majority and the addition of Justice Amy Coney Barrett to the high court, are increasingly passing restrictive abortion-related regulations, hoping to curb the constitutional right first established in 1973 in Roe and reaffirmed in 1992 when the court handed down Planned Parenthood v. Casey.

Mississippi’s Gestational Age Act, passed in 2018 but blocked by two federal courts, allows abortion after 15 weeks “only in medical emergencies or for severe fetal abnormality” and has no exception for rape or incest. If doctors perform abortions outside the parameters of the law they will have their medical licenses suspended or revoked and may be subject to additional penalties and fines.

In a brief filed in July, Mississippi Attorney General Lynn Fitch, a Republican, argued that Roe v. Wade was “egregiously wrong” and should be overturned.

“The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition” Fitch told the justices.