This week, the highest court in the U.S. began hearing arguments in a pivotal case on abortion rights. The Mississippi abortion case, which opened on Wednesday, is being described as the greatest threat to reproductive freedom in a generation because it has the potential to overwrite previous rulings that enshrined a person’s right to abortion—namely, the 1973 Roe v. Wade decision that legalized abortion in the U.S.
In Dobbs v. Jackson Women’s Health Organization, Mississippi state lawyers are aiming to have a statewide ban on abortion after 15 weeks upheld. The law is considered unconstitutional by many and letting the ban stand would directly undermine Roe, which guarantees a person’s right to end a pregnancy before the fetus reaches viability—when it’s developed enough to survive outside of the womb. (At that point, the logic goes, the potential life of the unborn baby becomes of interest to the state and not just the parent carrying the child, so a state can enact restrictions.) The current general consensus is that viability occurs around 23 weeks, the New York Times reports.
While the viability cutoff is imperfect—many criticize it as arbitrary and illogical, and the exact number of weeks has evolved with medical technology, as the New York Times reports—the Court has historically upheld this core tenet of Roe. In another landmark abortion case that is being challenged by Dobbs, 1992’s Planned Parenthood v. Casey, the Court reaffirmed Roe and declared that that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” as Vox explains. The ruling also established that laws could not place an “undue burden” on someone seeking a pre-viable abortion.
The Mississippi abortion case before the Supreme Court is full of legal complexities—and abortion law in the U.S. is generally convoluted and disjointed—but the essential issue at stake in Dobbs is “whether all pre-viability prohibitions on elective abortions are unconstitutional,” according to the SCOTUSblog. In other words, whether the Court will allow states to ban abortion many weeks before a fetus could live outside the womb. Should the Court uphold Mississippi’s state law banning abortion after 15 weeks, it would effectively overrule the right to pre-viable abortion first guaranteed by Roe and then upheld by Casey.
Roe could be explicitly overturned in the Court’s ruling. But it’s also possible the decision could let Roe and the constitutional right to an abortion technically stand, in name only, while indirectly gutting abortion rights and/or access through legal maneuvering and/or onerous restrictions, as Vox explains. Lawyers for Mississippi have already proposed backup arguments that would let the Mississippi law stand without completely overruling Roe, the Times reports. Either result would effectively reset abortion law and legal precedent in the U.S. and open the door for other Republican states to impose greater restrictions on abortion.
Many legal experts and reproductive health advocates predict that the Court will indeed uphold the Mississippi ban, as CNN reports, resulting in an explicit or de facto overturning of Roe. That outcome is very possible, if not highly likely, given the current makeup of the Court, in which the six conservative judges hold a supermajority. In addition to the conservative majority’s ideological leanings and previous rulings regarding abortion, there is the fact that in September the Court declined to block a Texas state law banning abortions after six weeks, as SELF reported.
As constitutional law expert and Supreme Court correspondent for Vox Ian Millhiser wrote, “There is every reason to believe that Dobbs ends disastrously for abortion rights.” We may have to wait a while for a ruling, however, which CNN reports may not be handed down until summer 2022.