The Supreme Court will hear a historic abortion case this week

On Wednesday, judges will hear arguments over a Mississippi law banning abortion after 15 weeks in a direct challenge to Roe v. Wade.

The case presents the clearest test yet of the conservative court’s 6-3 trajectory.

Conservatives and anti-abortion activists have sought since 1973 to narrow or eliminate the legal right to abortion first recognized in the Roe decision. They hope the upcoming Mississippi case will finally undo it.

The state’s Republican attorney general, in a court filing filed over the summer, explicitly urged judges to overturn Roe and related rulings, calling the court’s precedent on abortion “grossly false.”

“This court must overturn Roe and Casey,” Mississippi Attorney General Lynn Fitch (right) wrote, also referring to the 1992 court decision in Planned Parenthood v. Casey. “Ro and Casey are blatantly wrong. They have proven hopelessly inapplicable. … and nothing but a complete break from those instances can stop the damage they have done.”

Under Roe and Casey, states may regulate abortion up to fetal survival, typically around 23 weeks, as long as the restriction does not constitute an “undue burden” on access to abortion. Critics say the Mississippi law, which bans abortion after 15 weeks of pregnancy and only excludes medical emergencies or “severe fetal malformations,” is a clear violation of this framework.

However, compared to the recent past, opponents of abortion are now facing a much more sympathetic Supreme Court. In the 2020 abortion decision, for example, the 5-4 court that ruled against Louisiana’s abortion restrictions included a vote by the late Liberal Justice. Ruth Bader GinsburgRuth Bader GinsburgRoe Redax: Is “viability” still viable as a constitutional doctrine? Yankee Doodling media: How ‘Let’s Go Brandon’ became a rallying cry against news bias Katie Couric: CNN shouldn’t have let Chris Cuomo “yukha” with Brother Andrew during the pandemic more, who joined the three other Liberals on the Court and Chief Justice John Roberts to form a simple majority.

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In a court hearing filled with politically explosive topics, from gun rights to issues of separation of church and state, the controversy over the Mississippi ban could provide the clearest indication yet of how deeply conservative the Supreme Court is willing to fundamentally reshape key aspects of American life.

Robert Tsai, a professor of constitutional law at Boston University, asserted that the court’s most conservative justices were “bred on a consistent diet of teachings that Roe has always been illegal.”

“For most of them,” he said, “it was a question of when to vote against abortion rights, not whether that would be possible.”

Wednesday’s arguments come as the state awaits a court ruling on a controversial abortion restriction: SB 8 in Texas, which prohibits abortion at the first sign of fetal heart activity, usually around six weeks.

In September, a 5-4 court allowed Texas law to take effect; In early November, the judges heard quick oral arguments on the challenge to the law, and a ruling could be issued at any time.

For the roughly three months that Texas law has been in place, the state has been given a glimpse of what the post-Road world might look like. SB 8, the nation’s most restrictive abortion law, largely shut down abortion in Texas and forced many women to travel out of the state for treatment.

Many Republican officials favor this approach, which allows states to set rules regarding abortion. In the Mississippi case, dozens of GOP governors asked judges in a lawsuit to repeal federal abortion protections in order to allow states to regulate the procedure.

This is not an idle request either. The Mississippi law of 2018 — paused during litigation — is just one of hundreds of abortion measures passed by state legislatures in recent years, many of which have been an explicit target of Roe’s heart.

The Center for Reproductive Rights, an abortion rights group and an attorney involved in the Mississippi case, analyzed abortion laws in all 50 states, the District of Columbia, and several U.S. territories for its 2019 study “What If Roe Falls?” The group stripped away measures that would be left in place if RU were weakened or overturned, and ranked jurisdictions along a continuum from “extended access” to “hostile.”

The study found that abortion will remain legal in 21 states, while 24 states and three territories will likely move to impose some form of ban. In the remaining five states, abortion will still be “available but at risk.”

Abortion rights advocates say that scenario would be a recipe for “chaos.” In a court filing opposing the Mississippi law, abortion providers urged the Supreme Court not to formally undermine the constitutional right to abortion.

The abortion providers argued in the court memo: “The repercussions will be swift and certain.” “While abortion bans are enforced – or enforced looms – large swathes of the South and Midwest are likely to be without access to legal abortion.”

Mississippi’s appeal comes after losing two rounds in the lower courts. In 2019, the US Court of Appeals for the Fifth Circuit ruled that the state’s restrictions amounted to an unconstitutional prohibition on a woman’s right to terminate an unwanted pregnancy before it became viable.

The Court of Appeals found that Mississippi’s restrictions violated an “unbroken line dating from Roe v. Wade” in which the Supreme Court had consistently affirmed “a woman’s right to choose an abortion before it is viable.”


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