On Wednesday, judges will debate whether to support a Mississippi law banning abortion after 15 weeks and overturning a 1973 decision in Roe v. Wade.
Mississippi is also asking the court to overturn the 1992 ruling in Planned Parenthood v. Casey, which reaffirmed Roe. The arguments can be heard live on the court’s website, starting at 10 a.m. EST.
The case reaches a 6-3 conservative court that has been overturned by three appointees by President Donald Trump, who have pledged to appoint judges he said would oppose abortion rights.
The court never agreed to hear the very early pregnancy ban case until all three Trump appointees – Justices Neil Gorsuch, Brett Kavanaugh and Amy Connie Barrett – joined in.
A month ago, judges also heard the controversy over a uniquely designed Texas law that successfully circumvented Roe and Casey decisions and banned abortions in the nation’s second largest state after about six weeks of pregnancy. The dispute over Texas law revolves around whether the law can be challenged in federal court, rather than the right to an abortion.
Despite its unusually quick consideration of the case, the court did not rule on the Texas law, and the justices refused to delay the law during legal review.
The Mississippi case raises central questions regarding the right to abortion. There is likely to be some debate on Wednesday about whether the court should drop its long-established ruling that states cannot ban abortion before the point of feasibility, at about 24 weeks.
More than 90% of abortions are performed in the first 13 weeks of pregnancy, long before the survival, according to the federal Centers for Disease Control and Prevention.
Mississippi argues that viability is an arbitrary criterion that does not adequately take into account the state’s interest in regulating abortion. It also maintains that scientific advances have allowed some babies born before 24 weeks to survive, although it doesn’t argue that the streak is anywhere close to 15 weeks.
Only about 100 patients a year are miscarried after 15 weeks at The Jackson Women’s Health Organization, the only abortion clinic in Mississippi. The facility does not offer abortions after 16 weeks.
But the clinic says the court does not usually assess constitutional rights based on the number of people affected, and that judges should not do so in this case.
The clinic, which the Biden administration has joined, says that since Roe, the Supreme Court has consistently asserted that “the Constitution guarantees a woman’s right to choose an abortion before it is viable.”
The clinic says that erasing feasibility as the line between when abortion may be prohibited and may not have effectively eliminated Roe and Casey, even if judges did not explicitly do so.
Judge Clarence Thomas is the only member of the Court who has publicly called for Roe and Casey’s rebuttal. One question is how many of his fellow conservatives are willing to join him.
One of the questions judges ask when considering renouncing an earlier ruling is not only whether it is wrong, but scandalous.
This is the formula used by Kavanaugh in a recent opinion, and Mississippi and many of its allies have taken a lot of space in their court filings to say that Roe and Casey fit the description of being critically wrong.
“The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,” Mississippi says.
The clinic responds by saying that the same arguments were considered and rejected by the court nearly 30 years ago in Casey. The clinic and its allies say only the court’s membership has changed since then.
In its previous rulings, the Court has anchored the right to abortion in the Fourteenth Amendment section which states that states cannot “deprive any person of life, liberty, or property, without due process of law.”
The administration argues that same-sex marriage and other rights, based on the same provision but not explicitly mentioned in the Constitution, could be threatened if Roe and Casey fell. Mississippi and its supporters argue that those other decisions will be in jeopardy.
Arguments about abortion usually find people camping out in court for days in hopes of ripping into some of the few seats available to the public. But with the courtroom closed due to COVID-19, there will be only a tiny audience of reporters, judge clerks and a few lawyers inside the courtroom.
A decision is expected by late June, just over four months before next year’s congressional elections, and could become a rallying cry for the campaign season.
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