On Monday, May 17, the U.S. Supreme Court announced it would take up an appeal to a ruling striking down a Mississippi abortion ban. In 2018 the Magnolia State enacted a law that generally banned elective abortion after 15 weeks’ gestation. An order granting the review agrees to hear an appeal from the Fifth Circuit Court of Appeals, which upheld a district court ruling to dismiss the case before trial. The Supreme Court will decide “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.”
There can be no bans on abortion during a fetus’ pre-viability development under the current Supreme Court precedent. The rule stems primarily from the landmark abortion cases Planned Parenthood of Southeastern Pennsylvania v. Casey from 1992 and Whole Woman’s Health v. Hellerstedt from 2016. It is the position of the Jackson Women’s Health Organization and agreed to by the district and appellate courts. Jackson, the only abortion provider in Mississippi, filed a challenge to the new Gestational Age Act the day it was signed.
The abortion provider’s brief in opposition to the application for Supreme Court review says:
“Before viability, the State’s interests, whatever they may be, cannot override a pregnant person’s interests in their liberty and autonomy over their own body.”
The Fifth Circuit stated the same rule for the same reason: the Supreme Court’s Casey decision. It quoted in relevant part that “[p]rohibitions on previability abortions . . . are unconstitutional regardless of the State’s interests because ‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’” Viability is the point in pregnancy when “there is a reasonable likelihood of the fetus’ sustained survival outside the womb, with or without artificial support.”
Could Roe Be Aborted?
Mississippi’s law did not particularly challenge the lower courts. They made quick work striking down it down. This case has the potential for a new landmark decision on abortion precisely because the Supreme Court did take it, while the precedent seems quite clear. Why bother otherwise? Perhaps pro-life advocates do have a chance to move the Overton window on abortion with a majority of the justices.
Four members of the Supreme Court must agree to take a case before it is granted a hearing, so all we know for sure at this point is that at least four justices want to hear it. Justices Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh are all Catholics, or were raised so, and are the most recent appointees, raising speculation that a major change in Supreme Court jurisprudence on abortion may be at hand.
In the last big abortion case at the Supreme Court, June Medical Services v. Russo, in 2020, the justices struck down a law abortion-rights advocates called a de facto ban. That Louisiana law required abortion doctors to have admitting privileges at a nearby hospital. The law would have limited abortions to one doctor in the state, and it was stricken down by a bare 5-4 majority. Justice Ruth Bader Ginsberg voted, as she always did, to declare the imposition on abortion rights to be unconstitutional. Barrett may have a different opinion, which could change precedent.
The Court has not announced a date for arguments in the case, but it will hear the case sometime after the start of its next term in September.
Read more from Scott D. Cosenza.