- Mississippi bans most abortions after 15 weeks of pregnancy.
- In a Supreme Court brief, the state asks the justices to overturn Roe v. Wade.
- Sixteen states have attempted to ban abortions before viability.
WASHINGTON – Mississippi officials pressed the Supreme Court to overturn its landmark Roe v. Wade decision as an expected flurry of written arguments got underway Thursday in one of the most closely watched abortion cases in years.
The high court agreed in May to hear a challenge to Mississippi’s ban on most abortions after 15 weeks of pregnancy, giving its new, six-member conservative majority a chance to roll back the 1973 ruling that women have a constitutional right to abortion.
In their sharpest framing of the blockbuster dispute since the appeal was filed at the Supreme Court more than a year ago, Mississippi noted the text of the Constitution does not mention abortion and argued that adherence to Roe was “dangerously corrosive to our constitutional system.”
A 7-2 majority concluded in Roe that women have the right to an abortion during the first and second trimesters but that states could impose restrictions in the second trimester. Years later, in Planned Parenthood v. Casey, the court allowed states to ban most abortions at viability, the point at which a fetus can survive outside the womb – roughly 24 weeks.
“Roe and Casey are egregiously wrong,” lawyers for Mississippi told the court Thursday. “The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.”
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It does, however, have a basis in recent precedent. Courts – especially the Supreme Court – are hesitant to overturn past decisions because the principle of stare decisis, adherence to earlier decisions, gives stability and certainty to the law.
Since Chief Justice John Roberts joined the court in 2005, the justices have been especially hesitant to second-guess the decisions of their predecessors. Roberts has frequently argued the importance of precedent even in the abortion context, joining the court’s liberals last year to strike down a Louisiana restriction on abortion clinics because it was so similar to a Texas law that the court had invalidated years earlier.
The high court, Roberts wrote last year, must “treat like cases alike.”
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And that’s an argument abortion rights groups are reinforcing again.
“In an unbroken line of decisions over the last fifty years, this court has held that the Constitution guarantees each person the right to decide whether to continue a pre-viability pregnancy,” the state’s sole remaining abortion clinic, Jackson Women’s Health Organization, told the court last year. “Before viability, it is for the pregnant person, and not the state, to make the ultimate decision.”
Attorneys for the clinic that sued to block the law will submit their written argument in September. The court could hear oral arguments this fall and will likely hand down a decision in the spring or summer of next year.
Mississippi approved its prohibition in 2018, making it one of 16 states with pre-viability bans blocked by federal courts, according to the Guttmacher Institute, a research group that supports abortion rights. The law has no exception for rape or incest but allows abortions for medical emergencies and “severe fetal abnormality.”
Rather than overturning Roe directly, the justices could take a more narrow approach and jettison the viability threshold, which Mississippi argues is arbitrary and changes with medical technology. But that would raise the same question that has vexed the Supreme Court for decades: Where to draw the line between a state’s interest in protecting a fetus and a woman’s right to reproductive autonomy.
Some states have tried to ban most abortions at the point a fetal heartbeat is detected, about 6 weeks. Others have sought to ban abortion at conception. Earlier this week, a federal judge temporarily blocked enforcement of an Arkansas law, which was set to take effect July 28, that would have banned nearly all abortions.
More than 92% of abortions in the U.S. in 2018 occurred in the first 13 weeks of pregnancy, according to the Centers for Disease Control and Prevention.
Despite predictions that a more conservative Supreme Court would move rapidly to the right, the court’s term that wrapped up this month offered a more nuanced picture. The outcomes in major voting rights, immigration and religious freedom disputes often aligned with the conservative viewpoint, by frequently did so more incrementally than some had forecast. That’s partly because the court’s six conservatives did not always vote in lockstep.
Though Roberts is no longer the swing vote, he nevertheless appeared to build coalitions this year between conservatives and liberals. Assuming Roberts lands in the majority in Dobbs, experts said, he could attempt to replicate that approach by crafting an opinion that undercuts Roe without directly overturning it.
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The justices spent months deciding whether to take the case, an unusually long time that suggested deep divisions on the nine-member bench.
A federal district court in Mississippi struck down the state ban in 2018 and the New Orleans-based U.S. Court of Appeals for the 5th Circuit upheld that decision in 2019, finding that the law was “facially unconstitutional because it directly conflicts with” prior Supreme Court precedent.