New Case Could Pose Threat to Roe v. Wade

Supreme Court will tackle Mississippi law that would ban abortions after 15 weeks
By John Johnson,  Newser Staff
Posted May 17, 2021 1:30 PM CDT
New Case Could Pose Threat to Roe v. Wade
Seated, from left: Samuel Alito, Clarence Thomas, Chief Justice John Roberts, Stephen Breyer, and Sonia Sotomayor. Standing, from left: Brett Kavanaugh, Elena Kagan, Neil Gorsuch, and Amy Coney Barrett.   (Erin Schaff/The New York Times via AP, Pool, File)

The Supreme Court caused people on both sides of the abortion debate to take notice on Monday—the justices decided to hear a case later this year that is seen as a major challenge to Roe v. Wade. The details:

  • The case: Dobbs v. Jackson Women's Health Organization is out of Mississippi, where the state law in question would outlaw nearly all abortions after 15 weeks, reports the New York Times. Lower courts have stopped the law from taking effect after citing principles in Roe v. Wade of 1973 and Planned Parenthood v. Casey nearly 20 years later.
  • Key issue: A fetus is considered viable, meaning it could survive outside the womb, around 23 weeks. Roe and Planned Parenthood affirm a woman's right to have an abortion before the fetus is viable, and the Mississippi law challenges that. The court announced it would examine whether "all pre-viability prohibitions on elective abortions are unconstitutional," per SCOTUSblog. That, writes Robert Barnes at the Washington Post, "has been a key component of the court's jurisprudence."

  • Appeals judge: Here is how a lower court judge put it, per the AP: “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," wrote Judge Patrick Higginbotham of the 5th US Circuit Court of Appeals. In affirming a ruling against the Mississippi law, he described the legislation as a "ban." Mississippi argues that the viability standard is arbitrary and interferes with its right to regulate abortions.
  • The implications: It's "impossible to overstate" the threat to Roe v. Wade, law professor Mary Ziegler, who authored the book Abortion and the Law in America: Roe v. Wade to the Present, tells the Post. That's true even if the court doesn't actually overturn Roe, because eliminating the fetal viability standard would serve the same purpose. "Without viability, it is not clear whether the court will impose any limit on abortion bans," says Ziegler.
  • The votes: The court now has a 6-3 conservative majority with the final addition of Amy Coney Barrett, whose views in opposition to abortion were a concern to Democrats during her confirmation hearing. She replaced liberal Ruth Bader Ginsburg, who voted with the majority last year in a 5-4 ruling to block a Louisiana abortion restriction, notes the Hill.
  • Anti-abortion view: “This is a landmark opportunity for the Supreme Court to recognize the right of states to protect unborn children from the horrors of painful late-term abortions,” says Marjorie Dannenfelser of Susan B. Anthony List. “Across the nation, 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."
  • The other side: The case sets off loud "alarm bells," says Nancy Northup of the Center for Reproductive Rights. “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."
(Read more abortion debate stories.)

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