US Supreme Court to hear major abortion case with ramifications for Roe vs Wade

The US is facing its biggest legal fight over abortion rights in decades after a crucial announcement from the Supreme Court today.

The US Supreme Court has agreed to hear a case with massive implications for the country's abortion laws, setting up the most significant legal fight on the issue in decades.

Today the United States' highest court announced it would take up Dobbs vs Jackson Women's Health Organisation.

The case concerns a law passed by Mississippi in 2018, the Gestational Age Act, which banned abortions after 15 weeks of pregnancy and was subsequently struck down by the lower courts for violating the US Constitution.

The nine Supreme Court justices are limiting their deliberations to a single question: whether "all pre-viability prohibitions on elective abortions are unconstitutional".

Why is that so significant? Because it goes to the heart of Roe vs Wade, a landmark Supreme Court decision from 1973 which legalised abortion throughout the US and has been the legal precedent ever since.

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An anti-abortion activist outside the Supreme Court in Washington. Picture: Nicholas Kamm/AFP

THE 'VIABILITY' THRESHOLD

The key word here is "viability".

In Roe, the Supreme Court ruled that governments across the US could ban abortion, but only from the point of viability onwards, i.e. the time at which a fetus can realistically survive outside the womb. According to medical experts, that threshold is reached at about 23 or 24 weeks.

"With respect to the state's important and legitimate interest in potential life, the 'compelling' point is at viability," the court said.

"State regulation protective of fetal life after viability thus has both logical and biological justifications. If the state is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother."

In another landmark case, 1992's Planned Parenthood of Southeastern Pennsylvania vs Casey, the Supreme Court again found "the line should be drawn at viability".

"A state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability," it said.

This has been the legal framework for abortion in the United States since 1973. In effect, governments cannot ban abortion before 24 weeks.

The broader issue isn't that simple, of course. Opponents of abortion have done plenty to restrict women's access to it, despite being unable to ban it outright.

Some states have imposed requirements that women's parents be involved in the decision, for example. Some require a woman to wait for a certain amount of time after first visiting a clinic before she can actually have the abortion. These measures are fine, under the current interpretation of the Constitution, as long as they do not place an "undue burden" on women.

But none of that stuff affects this case. The Supreme Court is specifically considering whether all pre-viability "prohibitions" on abortion violate the Constitution.

If it answers yes, that will reaffirm the precedent set by Roe and Casey.

If the court answers no, however, the decision could enable governments across the country to impose bans on abortion much earlier in a woman's pregnancy. It would be the legal victory America's pro-life movement has been seeking for decades.

"This will be, by far, the most important abortion case the court will have heard since the Casey decision in 1992," Professor Steve Vladeck, a legal expert from the University of Texas, said today.

"If states are allowed to effectively ban abortions after the 15th week of pregnancy, as the Mississippi law in this case does, then pregnant women would have a far shorter window in which they could lawfully obtain an abortion than what Roe and Casey currently require."

"No way to overstate what a huge deal this is," said legal historian Mary Ziegler.

Mary (who you should follow if you don't already) is absolutely right here.

The key to this case is that the conservatives can take a *huge* bite out of Roe *without* "overruling" it—just by allowing states to move the line before which Casey applies from viability to 15 weeks. https://t.co/kVYXhK4rti

— Steve Vladeck (@steve_vladeck) May 17, 2021

THE CASE IN QUESTION

Mississippi passed its 15-week abortion ban in 2018. It included exemptions for medical emergencies and severe fetal abnormalities, but not for pregnancies that resulted from rape or incest. The state's Republican Governor, Phil Bryant, said he wanted to make it "the safest place in America for an unborn child".

In November of 2018, after months of legal challenges, Mississippi's Southern District Court ruled the law was unconstitutional.

Judge Carlton Reeves, an appointee of Democratic president Barack Obama, accused Republicans of writing unconstitutional legislation on purpose, knowing it would be struck down. They could then appeal the decision - giving them an avenue to get an abortion case before the Supreme Court.

"The state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fuelled by national interest groups, to ask the Supreme Court to overturn Roe vs Wade," said Judge Reeves.

"The fact that men, myself included, are determining how women may choose to manage their reproductive health is a sad irony not lost on the court.

"As a man, who cannot get pregnant or seek an abortion, I can only imagine the anxiety and turmoil a woman might experience when she decides whether to terminate her pregnancy through an abortion. Respecting her autonomy demands that this statute be enjoined."

Mississippi appealed. A year later, in December of 2019, the Fifth Circuit Court of Appeals upheld Judge Reeves' decision.

"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," said Judge Patrick Higginbotham.

"The law at issue is a ban. Thus, we affirm the district court's invalidation of the law."

The state then petitioned the Supreme Court, which took its time, but finally agreed to hear the case today.

The Supreme Court. Picture: Daniel Slim/AFP

'ALARM BELLS ARE RINGING'

The Supreme Court is currently split 6-3 between conservatives and progressives. Three of the current justices were appointed by former president Donald Trump, a Republican, strengthening the conservative majority.

The balance of power shifted decisively when Justice Ruth Bader Ginsburg, a progressive, died last September. Mr Trump nominated Amy Coney Barrett to fill her vacant seat, and Justice Barrett was confirmed just a week before the 2020 election.

Her vote may be crucial in this case.

Last year, in June Medical Services vs Russo, the Supreme Court narrowly voted to strike down an anti-abortion law from Louisiana. The conservative Chief Justice, John Roberts, sided with the court's progressive wing, resulting in a 5-4 margin.

Justice Barrett's presence means the conservatives no longer need Justice Roberts' vote to achieve a majority.

The Supreme Court will begin to hear arguments in the autumn, and a ruling is likely to come in 2022.

Pro-choice activists and politicians reacted to the court's announcement today with alarm.

"Alarm bells are ringing loudly about the threat to reproductive rights," said Nancy Northup, head of the Centre for Reproductive Rights.

"The Supreme Court has 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 consequences of a Roe reversal would be devastating. Over 20 states would prohibit abortion outright. Eleven states, including Mississippi, currently have trigger bans on the books which would instantaneously ban abortion if Roe is overturned."

Asked about the case during today's media briefing, White House press secretary Jen Psaki said President Joe Biden was "committed to codifying" Roe vs Wade in federal law regardless of the outcome. This would involve passing a law through Congress enshrining a right to abortion before the fetus is viable, thereby overruling any state laws to the contrary.

Mr Biden would need the support of at least 10 Republicans to get such a law through the Senate. At the moment, he is well short of that threshold.