Supreme court agrees to hear abortion case that could challenge Roe vs Wade

The US supreme court will consider gutting the constitutional right to abortion, agreeing on Monday to hear Mississippi’s bid to ban the procedure in almost all cases after 15 weeks of pregnancy.

The move suggests the court’s strengthened conservative wing may be ready to roll back the landmark 1973 Roe vs Wade ruling, which legalised abortion nationwide. The court will hear arguments in the nine-month term that starts in October. It will be its first abortion case since Justice Amy Coney Barrett was confirmed. The decision to take the case required the votes of four justices.

Mississippi’s appeal seeks to let states outlaw abortion even before a foetus becomes viable, or capable of living outside the womb. That would eviscerate the core holding of the 1992 Planned Parenthood vs Casey ruling, which said states can’t impose significant restrictions before viability. The court in Casey did not pinpoint when viability occurs but suggested it was about 23 or 24 weeks at the time of the ruling.

In its appeal, Mississippi argued that viability is “not an appropriate standard for assessing the constitutionality of a law regulating abortion”. The state says its ban was designed to protect maternal health as well as the life of the foetus.

“America cannot be a humane, civilised society if its courts preclude lawmakers from imposing reasonable limits on the taking of innocent life,” Mississippi attorney-general Lynn Fitch argued.

Abortion opponents are seeking to take advantage of a court reshaped by three Donald Trump appointees. The last two of those, Barrett and justice Brett Kavanaugh, replaced justices who backed the core abortion right. Kavanaugh replaced the retired justice Anthony Kennedy while Barrett succeeded justice Ruth Bader Ginsburg, who died less than two months before last November’s election.

Energised by the prospect of a more receptive court, conservative states have been moving to sharply restrict abortion rights. So far in 2021 alone, states have enacted more than 60 new abortion restrictions, including near-total bans in Arkansas and Oklahoma, according to the Guttmacher Institute, a research organisation that backs reproductive rights.

Overturning Roe

The 2018 law was challenged by the state’s only abortion facility, the Jackson Women’s Health Organization.

“In an unbroken line of decisions over the last 50 years, this court has held that the constitution guarantees each person the right to decide whether to continue a pre-viability pregnancy,” the clinic argued in a brief that urged rejection of the appeal.

Abortion-rights advocates said the court’s eventual ruling could be a watershed moment.

“Alarm bells are ringing loudly about the threat to reproductive rights,” Nancy Northup, president of the Center for Reproductive Rights, which is representing the clinic. “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 vs Wade.”

The appeal doesn’t directly call on the court to overturn Roe and Casey. But in a footnote, Mississippi held open the possibility the court could take that step anyway.

“If the court determines that it cannot reconcile Roe and Casey with other precedents or scientific advancements showing a compelling state interest in fetal life far earlier in pregnancy than those cases contemplate, the court should not retain erroneous precedent,” Fitch argued.

‘Landmark opportunity’

Abortion opponents hailed the court’s decision to take the case.

“This is a landmark opportunity for the supreme court to recognise the right of states to protect unborn children from the horrors of painful late-term abortions,” said Marjorie Dannenfelser, president of the Susan B  Anthony List. “It is time for the supreme court to catch up to scientific reality and the resulting consensus of the American people as expressed in elections and policy.”

The Mississippi ban makes exceptions only in cases of severe fetal abnormality or major health risk to the woman. A federal district judge and then a federal appeals court said the ban was unconstitutional.

Mississippi has a separate law that bans abortion after 20 weeks and isn’t at issue in the supreme court appeal. The Jackson clinic provides abortions only through the 16th week of pregnancy.

White House spokesperson Jen Psaki declined to comment on the court’s decision to take the case but said President Joe Biden and Vice-President Kamala Harris “are devoted to ensuring that every American has access to health care, including reproductive health care”.

The high court had deferred acting in the case since late September. The justices gave no explanation for the unusually long delay, though they ultimately said they would take only one aspect of Mississippi’s appeal, its attack on the viability issue.

Mississippi also argued that clinics lacked the legal right to sue on behalf of their patients in the case, but the court on Monday declined to take up that issue.

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