The decision to take the case was unsurprising. President Donald Trump vowed to appoint justices who would overrule Roe v. Wade, the 1973 decision holding that women have a constitutional right to obtain abortions. With Trump’s three historic appointments to the high court, all that opponents of Roe needed was the right vehicle. The Mississippi case gives them just that. It will be heard in the court’s term beginning in October.
The Mississippi law at issue would prevent women from terminating their pregnancies before viability, the point at which the fetus may survive outside of the womb. Under existing case law, the statute is plainly unconstitutional. In Roe v. Wade, the Supreme Court held that women have a constitutional right to terminate a pregnancy. And in 1992, in Planned Parenthood v. Casey, the court declined to overrule Roe and reaffirmed that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”
Based on that reasoning, two federal courts enjoined Mississippi from enforcing its law. To uphold the law, the Supreme Court has two options: It could overrule Roe. Or it could limit Roe so dramatically that abortion would become a right in name only.
It would not be unthinkable for this Supreme Court to use the Mississippi case to jettison Roe and Casey. Although stare decisis and its principle of respect for settled precedents has long been a hallmark of U.S. law, this court has in recent years refused to be bound by established precedents.
Last year, Justices Neil M. Gorsuch and Brett M. Kavanaugh, two of Trump’s appointees, cast votes to overrule a case that had invalidated a pair of abortion restrictions. The term before that, in another case, Justice Clarence Thomas argued that the court was duty-bound to overrule precedents that were “demonstrably erroneous.” In other writings, he has railed against Roe and Casey as perversions of constitutional law. And the court’s newest member, Justice Amy Coney Barrett, has, in her academic writing, indicated that she shares Thomas’s ideas about precedents and abortion rights.
Even in cases where the court has not overruled past decisions, it has gone to herculean lengths to limit prior cases, broadly refashioning entire areas of law without explicitly overruling the decisions undergirding those doctrines. And this approach might be what lies ahead for abortion.
Rather than overruling Roe and Casey, the court might say that viability is no longer a meaningful marker for determining when a state may restrict a woman’s right to choose — a decision that would be as consequential as scuttling Roe itself. It could allow states to restrict access to abortion at any point during pregnancy, sharply curtailing reproductive rights as lower courts reconsider the constitutionality of bans on abortion after 12 weeks, 10 weeks or six weeks of pregnancy. Under Roe and Casey, courts easily found all such laws unconstitutional because they prohibited abortions before viability. If the court erases viability’s significance, many abortion restrictions once easily struck down will pose more difficult questions for reviewing courts.
Either way, with numerous states eagerly seeking to restrict abortion access, a ruling in favor of the Mississippi law could be catastrophic for women — and for the future of reproductive justice.
Critically, not everyone at the court was spoiling for this fight. The Mississippi challenge has been pending before the court since September 2020, far longer than it typically takes for the justices to decide to hear a case.
But much has changed since September. In October, Trump and Senate Republicans confirmed Barrett to replace Justice Ruth Bader Ginsburg, even as early voting in the 2020 election was underway. It was Ginsburg’s dying wish that the winner of the election name her replacement, perhaps in part because Trump promised to appoint justices who would overrule Roe and the abortion right that Ginsburg viewed as essential to women’s equal citizenship.
She was right to worry. With a 5-to-4 conservative majority, the chief justice, ever attentive to the court’s public reputation, could limit the impulses and influence of the court’s abortion skeptics. Now, with a 6-to-3 supermajority, those eager to restrict abortion rights no longer need the chief justice’s support. They have the numbers and the authority to make good on Trump’s promise. For reproductive rights, this is the Trump Court now.