Norma McCorvey, left, who was Jane Roe in the 1973 Roe v. Wade case, with her attorney, Gloria Allred, outside the Supreme Court in April 1989, where the Court heard arguments in a case that could have overturned the Roe v. Wade decision. Courtesy of Lorie Shaull/Flickr.

On Monday 17, 2021, the United States Supreme Court said that it will review a case challenging a state law on abortion rights. The case, Dobbs v. Jackson Women’s Health Organization, concerns a Mississippi law that bans abortions after 15 weeks of pregnancy. The state law is considered a challenge to Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The 1973 historical case ruled that before the point of viability, the state cannot ban abortions based on the concern for prenatal life. And in this case, viability is once again at the center of the debate.

All eyes will be on the Supreme Court ruling as this is the first time that the majority-conservative court will weigh in on abortion rights. The court now has a 6-to-3 conservative majority since Justice Amy Coney Barrett – who has been openly critical of abortion – replaced Ruth Bader Ginsburg in 2020. 

What does the Mississippi law say?

In March 2018, Gov. Phil Bryant of Mississippi enacted H.B. 1510, also called the “Act,” with overwhelming support by both chambers of the State Legislature. The Act aims to ban abortion after 15 weeks of pregnancy and subjects abortion providers to severe penalties including license suspension or revocation. Mississippi law had previously prohibited abortions after 20 weeks. The Jackson Women’s Health Organization – the only remaining abortion clinic in Mississippi – currently only performs abortion procedures on women who are up to 16 weeks pregnant. The law allows no exceptions for cases of incest or rape but it does allow narrow exceptions for a “medical emergency, or in the case of a severe fetal abnormality.”

What does viability mean and why is it important in this case?

Since Roe v. Wade, over the last 50 years, the court has ruled that it was unconstitutional for states to ban abortions before fetal viability. Viability is the point in pregnancy when “there is a reasonable likelihood of the fetus’ sustained survival outside the womb, with or without artificial support.” Currently, the limit of viability is considered to be around 24 weeks.

“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 prior to viability,” Judge Patrick Higginbotham said. “States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortion.

The debate around Mississippi’s 15-weeks ban’s constitutionality relies heavily on where the viability line is. Jackson Women’s Health Organization offered evidence that viability is impossible at 15 weeks. The Fifth Circuit Court of Appeals also stated that “it had identified no medical evidence that a fetus would be viable at 15 weeks.”

Why is the Supreme Court reviewing this case?

The bill, called the Gestational Age Act, was challenged almost as soon as it was passed. Only hours after the bill was enacted, the Center for Reproductive Rights requested a temporary restraining order which was granted by the district court and blocked the law immediately. In November 2018, the district court issued a permanent injunction against the bill. The district court concluded that the Act’s “lawfulness hinges on a single question: whether the 15-week mark is before or after viability.” The court held that “States may not ban abortions prior to viability,” and, since “15 weeks lmp is prior to viability, . . . the Act is unlawful.” 

In December 2019, the Fifth Circuit Court of Appeals upheld the injunction and ruled the law as unconstitutional. Months later, in June 2020, the state of Mississippi appealed the decision to the Supreme Court. The challenge to Mississippi’s law was brought by the Center for Reproductive Rights, the law firm Paul Weiss, Rifkind, Wharton & Garrison, and the Mississippi Center for Justice on behalf of Jackson Women’s Health Organization.

What’s next?

The Supreme Court will review the case during its next term which begins in October and is unlikely to make a decision until the spring or summer of 2022.  While the ruling of the state wouldn’t necessarily overrule Roe v. Wade, it could lay the groundwork for even more restrictions on abortion. According to Nancy Northup, president and CEO of the Center for Reproductive Rights, the consequences of a Roe reversal would be felt instantly nationwide. Eleven states – including Mississippi – allegedly currently have trigger bans ready which would instantaneously ban abortion if Roe is overturned. For now, abortion remains legal in Mississippi and the ban will remain blocked as the Supreme Court reviews the case.

Alarm bells are ringing loudly about the threat to reproductive rights. The Supreme Court just agreed to review an abortion ban that unquestionably violates nearly 50 years of Supreme Court precedent and is a test case to overturn Roe v. Wade,” Northup, said in a press release.

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