Roe at Risk as Supreme Court Weighs Mississippi Abortion Case

A divided Supreme Court is poised to decide the most serious challenge in half a century to the landmark Roe v. Wade ruling after a panel of justices with a solid majority of conservative votes heard oral arguments Wednesday on a Mississippi case that could overturn the long-held legal precedent and dramatically restrict a woman’s access to an abortion.

The case, Dobbs v. Jackson Women’s Health Organization is a challenge to a Mississippi law banning abortion after 15 weeks of pregnancy and follows what has already been a consequential term for abortion. But unlike a high-profile Texas case the high court heard last month, which involves an even more stringent restriction and concerns whether the federal government had the right to intervene in the law given its unique enforcement mechanism, the Mississippi case is a direct challenge to Roe v. Wade.

“We’re running on 50 years of Roe,” Scott Stewart, Mississippi’s solicitor general, said during Wednesday’s arguments. “It is an egregiously wrong decision that has inflicted tremendous damage on our country and will continue to do so and take innumerable human lives unless and until this court overrules it.”

The landmark 1973 decision affirmed a constitutional right to an abortion before fetal viability, the age at which a fetus can survive outside of the womb, which is generally understood by experts today to mean 24 weeks of pregnancy. Like the Texas law, the Mississippi rule – which pro-choice advocates have called “blatantly unconstitutional” – attempts to set an earlier limit on the availability of the procedure. While the Texas law relies on private citizens to enforce it, making it difficult to challenge in court, the Mississippi law would be enforced by the state – although it’s been blocked by lower courts from taking effect.

But the conservative-majority high court could change that in a number of ways, including setting an earlier standard for viability, giving states more power to regulate abortion or by overruling Roe altogether.

Perhaps the most serious obstacle standing in the way of the court overturning Roe is the principle of stare decisis – the idea that courts should generally follow their past precedent. The principle came up throughout Wednesday’s arguments.

“They say Roe is special,” Justice Stephen Breyer said of those who would overturn Supreme Court precedent despite the principle. “They say it's rare. They call it a watershed. Why? Because the country is divided. Because feelings run high. And yet the country, for better or worse, decided to decide their differences by this court laying down a constitutional principle, in this case women’s choice.”

Justices Sonia Sotomayor and Elena Kagan, who along with Breyer make up the court’s liberal wing, echoed their colleague’s point, adding that as many as 15 justices have reaffirmed the court’s 1973 decision, Sotomayor said. And that 50 years of decisions have said this precedent is “part of our blood,” Kagan said. “That this is part of the fabric of women’s existence in this country.”

Fetal viability was also critical to Wednesday’s arguments. Stewart argued that viability discounts states’ interests, and he proposed that the standard instead be based on whether an abortion law created an undue burden for those seeking to terminate a pregnancy. Representing the opposition, Julie Rikelman, the litigation director at the Center for Reproductive Rights, urged that the viability standard enables women to “resist” state control of their bodies because it creates an objective line rather than relying on philosophical questions about when life begins.

Justice Amy Coney Barrett, the newest member of the court and one who conservatives view as their best chance to overturn Roe, posed questions about adoption and safe haven laws that enable a parent to give a newborn away after birth. She seemed to assert that, given the ability to safely give up a child after birth, banning abortion would not necessarily burden a pregnant woman. But Rikelman argued that the risks pregnancy may pose, especially to women of color, are burdensome enough.

“Allowing a state to take control of a woman's body and force her to undergo the physical demands, risk and life-altering consequences of pregnancy is a fundamental deprivation of liberty,” Rikelman argued.

But Justice Brett Kavanaugh brought up whether the high court should have a say in what he called the “most contentious social debate in American life” at all or if the decision should be left to the people, states or Congress, seeming to propose that the court could return to neutrality on the issue if it believes that Roe was wrongly decided and subsequently overturns it.

“Why should this court be the arbiter, rather than Congress, the state legislatures, state supreme courts and people being able to resolve this?” Kavanaugh said. “There will be different answers in Mississippi, in New York, different answers in Alabama and California, because there are two different interests at stake and the people in those states might value those interests somewhat differently.”

Justice Samuel Alito during Wednesday’s arguments seemed to explore the midpoint between overruling and overturning Roe, questioning whether viability should be the line, given that it has changed over time with medical advancement.

The court’s decision is not expected to be handed down until June. But some have argued that even the high court’s decision to take up the case perhaps signals a willingness to overturn Roe.

But if the conservative-majority Supreme Court were to weaken or overturn the landmark ruling, given the opportunity in a case such as the Mississippi case, more than half of states would be implicated.

According to an analysis from the Guttmacher Institute, if Roe were weakened or overturned, 21 states would almost certainly ban abortion as quickly as possible, based on current laws and constitutional amendments already in place. Nine of those states have a pre-Roe abortion ban in place, while 12 states have “trigger” bans that would outlaw abortion if Roe were overturned. Five states have enacted near-total abortion bans in the decades since the landmark case and 12 states have a ban on abortions after six weeks of pregnancy, including Texas – the only law in effect. And some states have more than one ban in place. The group argues that five more states – Florida, Indiana, Montana, Nebraska and Wyoming – would likely ban abortion statewide as well, bringing the total to more than half of all states.

The high court has previously struck down appeals from other states over pre-viability abortion bans. Despite a conservative majority, the court as recently as June 2020 in a 5-4 decision struck down a Louisiana law that would have restricted abortion access in the state. But Barrett’s addition to the court months later bolstered the conservative majority, which now stands at 6-3, and diminished the power of Chief Justice John Roberts to act as a swing vote, as he did in the Louisiana case.

President Joe Biden on Wednesday reiterated his support for Roe v. Wade amid the court’s consideration of the landmark ruling, saying “I think it’s the rational position to take.”

U.S. Solicitor General Elizabeth Prelogar, who represented the Biden administration at the request of the Justice Department, theorized about how the public might perceive a break in precedent if the high court were to overturn Roe, saying that the court “has never revoked” a right as fundamental as abortion.

“It’s the case that not everyone agrees with Roe v. Wade, but just about every person in America knows what this court held,” Prelogar said. “They know how the court has defined this concept of liberty for women and what control they will have in a situation of an unplanned pregnancy. And for the court to reverse course now I think would run counter to that societal reliance and the very concept we have of what equality is guaranteed to women in this country.”