In accepting the case for next term, the court said it would examine whether “all pre-viability prohibitions on elective abortions are unconstitutional.” That has been a key component of the court’s jurisprudence, and the announcement sounded ominous to abortion rights advocates.
“Antiabortion politicians have exploited their power for this exact moment: the opportunity for the newly comprised Supreme Court to take away our right to abortion,” said Alexis McGill Johnson, president of the Planned Parenthood Action Fund.
The Mississippi law would ban almost all abortions after 15 weeks of pregnancy, with narrow exceptions for medical emergencies or fetal abnormalities. It has not gone into effect because a federal district judge and a panel of the U.S. Court of Appeals for the 5th Circuit said it could not be squared with decades of Supreme Court precedents.
Mississippi Attorney General Lynn Fitch told the Supreme Court that the ability to survive outside the womb was the wrong place to draw the line on restricting abortion.
“The Mississippi Legislature enacted this law consistent with the will of its constituents to promote women’s health and preserve the dignity and sanctity of life,” Fitch, a Republican, said in a statement after Monday’s announcement.
“I remain committed to advocating for women and defending Mississippi’s legal right to protect the unborn.”
The court has now accepted for the term that begins in October two issues dear to conservatives: gun rights and the ability of states to restrict abortion. And it could add a third: race. Conservative activists have teed up a case challenging Harvard’s use of affirmative action in admission decisions.
It is the kind of agenda the right has hoped for since the court reached a 6-to-3 conservative majority with the addition of Justice Amy Coney Barrett, a conservative nominated by President Donald Trump.
“This is a landmark opportunity for the Supreme Court,” Marjorie Dannenfelser, president of the Susan B. Anthony List, which works to elect antiabortion candidates, said in a statement.
She noted that “state lawmakers acting on the will of the people have introduced 536 pro-life bills aimed at humanizing our laws and challenging the radical status quo imposed by Roe. It is time for the Supreme Court to catch up to scientific reality and the resulting consensus of the American people as expressed in elections and policy.”
Abortion rights advocates said the court’s action should be greeted with “alarm bells.”
“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,” said Nancy Northup, president of the Center for Reproductive Rights, one of the groups representing Mississippi’s only abortion clinic, Jackson Women’s Health Organization.
“This is not a drill,” added Elizabeth Nash of the Guttmacher Institute, a research organization that favors reproductive rights. “The [Supreme Court’s] decision comes at a time when conservative politicians in over a dozen states are dismantling abortion rights and access with a vengeance and could eclipse even the record of enacted restrictions set in 2011.”
Mississippi already bans abortions after 20 weeks, and it has passed legislation that would ban most abortions once a fetal heartbeat is detected, or near six weeks. Lower courts have declined to let that law, or the 15-week ban passed in 2018, take effect.
Mary Ziegler, a Florida State University law professor and the author of “Abortion and the Law in America: Roe v. Wade to the Present,” said it was “impossible to overstate” the threat to Roe. She added that the court does not have to actually overturn the decision to void its impact, by eliminating fetal viability as the point at which bans are allowed.
“Without viability, it is not clear whether the court will impose any limit on abortion bans,” Ziegler said.
Antiabortion activists believe that their chances have never been better because of the dramatic change in the court’s membership.
Trump said overturning Roe was a priority when he chose three justices: Neil M. Gorsuch, Brett M. Kavanaugh and Barrett. Kavanaugh and Barrett could be particularly important because they replaced two justices who had protected abortion rights, Justices Anthony M. Kennedy and Ruth Bader Ginsburg, respectively.
Ginsburg last summer was part of a slim majority that struck down a restrictive Louisiana law. Chief Justice John G. Roberts Jr. joined the court’s then-four liberals to strike the statute but said it was a show of respect for precedent; it was nearly identical to a Texas law the court already had rejected.
But until then, Roberts voted for every abortion restriction that came before him. Gorsuch and Kavanaugh voted in the minority to uphold the law.
And Ginsburg, who died in September, has been replaced on the court by Barrett, who was outspoken against Roe and abortion rights before she became a judge. Upon her confirmation, Sen. Lindsey O. Graham (R-S.C.) praised her as “unashamedly pro-life.”
States around the country have been passing increasingly restrictive abortion laws that they acknowledge violate Supreme Court precedent anchored by Roe in 1973 and Planned Parenthood v. Casey 19 years later. The goal has been to get one of them to the high court.
U.S. District Judge Carlton Reeves wrote in a 2018 ruling on the 15-week ban that the Mississippi legislature’s “professed interest in ‘women’s health’ is pure gaslighting.”
“The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Reeves wrote.
The state argued that because the clinic challenging the law offered abortions only up to 16 weeks, the law was not affecting many women. The harm to the state, it said, was “requiring it to permit inhumane abortion procedures which cause a fetus to experience pain — a factor the Supreme Court has never explicitly addressed.”
But the 5th Circuit said it was not the place of lower courts to challenge the Supreme Court.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability,” Judge Patrick Higginbotham wrote for the appeals court. “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 abortions.”
Even though the panel was unanimous in striking the Mississippi law, Circuit Judge James Ho wrote separately to criticize Reeves’s opinion.
The decision, Ho wrote, “displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life.”
The case is Dobbs v. Jackson Women’s Health Organization.