High court will take up state appeal seeking to ban the procedure after 15 weeks of pregnancy, giving justices opportunity to revisit Roe v. Wade
By Brent Kendall and Jess Bravin, Wall Street Journal, May 17, 2021
WASHINGTON—The Supreme Court said it would consider the legality of a Mississippi abortion law that sought to ban the procedure after 15 weeks of pregnancy, a case that gives the justices an opportunity to revisit precedents protecting abortion rights.
The court’s one-sentence order on Monday, coming after eight months of deliberation, crystallized hopes and fears of partisans who have battled for decades over the abortion issue and the direction of the high court. Republicans have long sought to build a Supreme Court with enough conservative justices to narrow, if not abandon, precedents dating back to the landmark 1973 decision in Roe v. Wade that established a woman’s constitutional right to choose abortion before fetal viability. Democrats have made the preservation of abortion rights a central plank of their opposition to dozens of Republican nominees to the federal judiciary, warning that Roe and its progeny were under threat.
“The fact that the justices decided to take the case indicates a willingness of at least five of them to revisit existing precedent,” said University of Chicago law professor Geoffrey Stone, who has written extensively about the history of the Supreme Court’s abortion rulings. “The only reason to hear the case would be to do that.”
The court will consider the case during its next term, which begins in October.
If Mississippi wins, the Supreme Court would be allowing states more room to regulate abortion than at any time since Roe. The court wouldn’t have to explicitly overturn Roe and other precedents, but any ruling for the state would put significant limits on abortion rights, Mr. Stone said.
When asked during a 2016 presidential debate whether he wanted to see Roe v. Wade reversed, Mr. Trump said: “If we put another two or perhaps three justices on, that will happen, and that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court.”
Mississippi’s only abortion clinic, the Jackson Women’s Health Organization, challenged the state’s 2018 law as unconstitutional. Two lower courts agreed, saying an unbroken line of Supreme Court rulings dating back to Roe established that states can regulate—but not outright ban—the procedure in the pre-viability months of pregnancy. The state appealed to the high court in a bid to save the law, which isn’t in effect because of the lower-court rulings.
Mississippi’s law would allow abortions after 15 weeks only in cases of medical emergency or severe fetal abnormality. The state argues that fetal viability—defined by the Roe court as the capability of meaningful life outside the mother’s womb—shouldn’t be the standard for allowing states to ban abortion, saying lawmakers had legitimate interests in protecting fetal life from the outset. By 15 weeks, the human fetus has made important physiological developments and abortions are riskier to the mother, the state says.
In a tweet, Republican Mississippi Attorney General Lynn Fitch, who filed the appeal, said the state law aimed “to promote women’s health and preserve the dignity and sanctity of life. I remain committed to advocating for women and defending Mississippi’s legal right to protect the unborn,” she said.
The high court’s decision to consider the Mississippi ban “is an ominous sign and an alarming reminder that the threat to the legal right to abortion is imminent and real,” said Christian LoBue, a representative of Naral Pro-Choice America, an abortion-rights group. “If Roe v. Wade were to fall as a result of this case, states across the country are poised to ban abortion. The impact would be devastating, especially on those who already face the greatest barriers to care.”
Mississippi is one of several Republican-led states that have passed more aggressive restrictions on abortion in recent years, including so-called fetal-heartbeat laws that would ban the procedure as early as six weeks into pregnancy. Those states have been more willing to test the legal waters since the 2018 retirement of Justice Anthony Kennedy, a maverick conservative who for years was the court’s pivotal vote protecting abortion rights.
The court shifted further to the right last year after the death of Justice Ruth Bader Ginsburg, a leading member of the court’s liberal wing who viewed abortion rights as essential to women’s equality. She was succeeded by Justice Amy Coney Barrett, a conservative who personally opposes abortion and whose legal writings suggest she is skeptical of the current scope of abortion rights.
University of Notre Dame law professor Carter Snead, a member of University Faculty for Life, said he hoped the court would “finally end its failed and constitutionally unjustified experiment as the nation’s ad hoc abortion regulatory body of last resort.”
Mr. Snead, a former faculty colleague of Justice Barrett who publicly advocated for her confirmation, said the court should renounce Roe and other precedents that have “undermined the rule of law, broken our electoral politics and resulted in a staggering number of lives lost.”
The Jackson clinic had urged the Supreme Court not to hear the case and instead leave the lower-court rulings in place. The state’s ban extends well before viability and contravened the fundamental tenet of the high court’s abortion-rights precedents, the clinic argues.
“As the only abortion clinic left in Mississippi, we see patients who have spent weeks saving up the money to travel here and pay for child care, for a place to stay and everything else involved,” said Diane Derzis, the facility’s owner. “If this ban were to take effect, we would be forced to turn many of those patients away, and they would lose their right to abortion in this state.”
Nearly 90% of abortions take place in the first 12 weeks of pregnancy, according to the Guttmacher Institute, a research group supportive of abortion rights.
The court has largely upheld abortion rights since the Roe decision but typically by the narrowest of margins. That record puts the focus on the three justices appointed since 2017 by President Donald Trump, who made conservative judicial nominations a priority during his administration.
When asked during a 2016 presidential debate whether he wanted to see Roe v. Wade reversed, Mr. Trump said: “If we put another two or perhaps three justices on, that will happen, and that’ll happen automatically, in my opinion, because I am putting pro-life justices on the court.”
President Biden made support for abortion rights part of his campaign platform last year. On Monday, White House press secretary Jen Psaki declined to comment on the Mississippi case, but said the president remains “committed to codifying Roe” in federal law rather than relying on shifting Supreme Court majorities.
Only three justices on the current court— Stephen Breyer, Sonia Sotomayor and Elena Kagan, all appointed by Democratic presidents—have embraced a broad view of abortion rights. Conservative Justices Clarence Thomas and Samuel Alito have consistently voted to uphold abortion restrictions. Chief Justice John Roberts voted last year to strike down a Louisiana abortion regulation, but couched his views as adherence to precedent rather than agreement with the prior decision’s fundamental reasoning.
In that case, from last June, a 5-4 court struck down a law requiring that any doctor who provides abortions obtain admitting privileges to a local hospital. Chief Justice Roberts joined four liberal justices, including the late Justice Ginsburg, to hold the law unconstitutional, citing a 2016 decision in which the high court struck down a similar Texas law that the court found imposed an undue burden on women while providing no health benefits.
Justices Neil Gorsuch and Brett Kavanaugh, Mr. Trump’s first two appointees, dissented in the Louisiana case along with Justices Thomas and Alito. Justice Ginsburg, died three months later and was succeeded by Justice Barrett, who was confirmed in October.
The Mississippi case touches a sharp point of the nation’s political and cultural divide and comes as the makeup of the court itself has become a deeply partisan issue.
Some Democrats, furious at what they consider hardball moves by Republicans to secure a conservative majority by blocking President Barack Obama from filling a vacancy in 2016 and then confirming a Trump nominee days before last year’s presidential election, have floated various proposals to temper the rightward shift, including by adding seats that President Biden could fill.
The president, who hasn’t endorsed any particular plan, appointed a blue-ribbon commission to study potential changes to the court. The panel is set to hold its first meeting on Wednesday and deliver a report in six months.
Although 1973’s Roe v. Wade remains the best-known abortion case, the court’s current legal framework for evaluating restrictions on the procedure stems from a 1992 decision, Planned Parenthood v. Casey. The joint opinion by Republican-appointed Justices Kennedy, Sandra Day O’Connor and David Souter sought a compromise that narrowed abortion rights without foreclosing the procedure altogether.
The Casey decision emphasized the state’s interest in protecting “the potential life within the woman,” holding that government could impose restrictions that might discourage abortions, so long as they didn’t amount to an “undue burden” on women who decide to end their pregnancies.
This article first appeared HERE.