Today, the United States Supreme Court agreed to hear argument concerning a Mississippi law that would, if deemed constitutional, significantly impact a woman's right to choose abortion established under Roe v. Wade.
While it would seem that SCOTUS cannot use this opportunity to overrule Roe in its entirety (the law in question does not seek a total ban on abortions), the Court could by ruling the law constitutional implicitly send a message that it is willing to do so if the right case presented itself. Indeed, some would not be shocked if a majority of SCOTUS (i.e. the conservative block consisting of Justices Alito, Thomas, Kavanaugh, Gorsuch, Coney Barret and Chief Justice Roberts) made an even more explicit invitation in such a decision.
Here is the Order Issued by the United States Supreme Court on May 17, 2021 Granting Certioari in a Mississippi Abortion Case that Could Lead to Reversal of Roe v. Wade
Today, the Supreme Court issued the following Order in Jackson Women's Health Organization v. Dobbs:
19-1392 DOBBS, MS HEALTH OFFICER, et al. v. JACKSON WOMEN'S HEALTH, et al. The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.
As per MSNBC, here is a succinct summary of the matter:
The Supreme Court on Monday agreed to take up a key abortion case next term concerning a controversial Mississippi law that banned most abortions after 15 weeks, rekindling a potentially major challenge to Roe v. Wade at the majority conservative court.
Mississippi’s 15-week abortion ban, which then-Gov. Phil Bryant, a Republican, signed into law in 2018, made exceptions only for medical emergencies or cases in which there is a “severe fetal abnormality,” but not for instances of rape or incest. A federal judge in Mississippi struck down the law in November 2018, and the 5th US Circuit Court of Appeals upheld that ruling in December 2019.
When Was Roe v. Wade Decided and Who Were the Judges That Decided Roe v. Wade?
Roe v. Wade was a decided on January 22, 1973, and was a 7-2 decision. The majority consisted of Justices Burger, Douglas, Brennan, Stewart, Marshall, Blackmun, and Powell.
The two dissenting members of the Court were Justices White and Rehnquist.
What is the Holding of the Majority Decision in Roe v. Wade?
In a nutshell (Roe is a complicated case!), and as is pertinent here, Roe v. Wade established that a fetus was not viable before 24 weeks (i.e. upon the conclusion of the second trimester), and therefore forbade states from prohibiting abortions undertaken before such time . Subsequent to the conclusion of the second trimester, when the fetus is medically determined to be viable, Roe granted states the right to "regulate, or even proscribe abortion" as long as the life and health of the mother was protected. A number of states have of course done so.
When Gov. Phil Bryant signed H.B. 1510, also known as the Gestational Age Act, in March 2018, he pledged his “commitment to making Mississippi the safest place in America for an unborn child.” In essence, the Mississippi Act eliminated a 9-week window for abortions created by Roe falling between the 16th and 24th weeks of pregnancy. The Act does not seek to ban abortions taking place during the first 15 weeks of a pregnancy.
What Were the Rulings of the Mississippi Federal Courts in Jackson Women's Health Organization v. Dobbs?
In deciding the Act was unconstitutional, U.S. District Judge Carlton Reeves of Mississippi’s Southern District, who was appointed by President Obama, wrote:
The state chose to pass a law it knew was unconstitutional to endorse a decades long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade. This court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.
. . .
[Mississippi's] leaders are proud to challenge Roe but choose not to lift a finger to address the tragedies lurking on the other side of the delivery room, such as high infant and maternal mortality rates.
No, legislation like H.B. 1510 is closer to the old Mississippi – the Mississippi bent on controlling women and minorities.
Thereafter the Fifth Circuit Court of Appeals affirmed Judge Reeves determination in a December 13, 2019 decision in Jackson Women's Health Organization v. Dobbs. That decision was authored by Judge Patrick Higginbotham, who wrote:
In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability [i.e. before 24 weeks] so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions [outright].
It has been reported that Alabama, Arkansas, Georgia, Kentucky, Louisiana, Missouri, Ohio and Utah have also looked to chip away at the 24-week viability standard established by Roe v. Wade.
We will keep you posted with updates on Jackson in the coming months. Thanks for checking in with us.