Fate of abortion access looms over new Supreme Court term

The Supreme Court is slated to hear a number of hot-button issues in the new term that starts Monday, but one case looms largest: a clash over a Mississippi abortion law that directly challenges Roe v. Wade.

Conservatives and anti-abortion activists hope the case will mark the culmination of nearly five decades of their concerted effort to narrow the constitutional right to abortion first recognized by the court in 1973.

Mississippi officials have made no secret of their goal. The state’s Republican attorney general in a court brief filed over the summer explicitly urged the justices to use the dispute over Mississippi’s 15-week abortion ban as a vehicle to overrule Roe and related rulings, calling the court’s precedent on abortion “egregiously wrong.”

“This Court should overrule Roe and Casey,” Mississippi Attorney General Lynn Fitch (R) wrote, referring also to the court’s 1992 decision in Planned Parenthood v. Casey. “Roe and Casey are egregiously wrong. They have proven hopelessly unworkable. … And nothing but a full break from those cases can stem the harms they have caused.”

A dozen Republican governors also asked the justices in a court filing to eliminate federal abortion protections in order to allow states to regulate the procedure.

Abortion rights advocates have warned that if the Supreme Court were to dramatically undermine the constitutional right to abortion, then “chaos would ensue.”

“The fallout would be swift and certain,” abortion providers argued in their court brief opposing Mississippi’s law, which has been put on pause during litigation. “As abortion bans are enforced — or the threat of enforcement looms — large swaths of the South and Midwest would likely be without access to legal abortion.”

The 2018 Mississippi law is just one of hundreds of abortion measures that state legislatures passed in recent years, many with the explicit goal of overturning Roe v. Wade. This year alone, lawmakers have passed more than 90 anti-abortion bills, according to the Guttmacher Institute, an abortion rights advocacy group.

Opponents of abortion now face a far more sympathetic Supreme Court bench than they did just a year ago. In a 2020 abortion ruling, a bare 5-4 majority voted to block a Louisiana abortion limit, with Chief Justice John Roberts casting the deciding vote alongside Justice Ruth Bader Ginsburg and the court’s three other liberal justices.

But former President Trump’s appointment of Justice Amy Coney Barrett radically changed the court’s ideological makeup following Ginsburg’s death. Along with Justice Brett Kavanaugh in 2018 filling the seat previously held by the more moderate Justice Anthony Kennedy, the solidly 6-3 conservative court has now thrown the fate of longstanding federal abortion protections into question.

“Justices Barrett and Kavanaugh were put on the Court to overturn Roe v. Wade and strip us of our constitutional right to abortion,” said Elizabeth Sepper, a law professor at the University of Texas.

The dispute over Mississippi’s ban could provide the clearest indication yet of just how far the heavily conservative Supreme Court is willing to go to reshape American life in fundamental ways.

Legal experts said the court’s 5-4 refusal to block Texas’s new six-week abortion ban last month could foreshadow further erosion of reproductive rights.

“People need to remember that the justices who are willing to let Texas’s ban go into effect have been raised on a steady diet of teachings that Roe has always been illegitimate,” said Robert Tsai, a constitutional law professor at Boston University. “For most of them, it has been just a matter of when, not if, to vote against abortion rights.”

The Mississippi abortion restriction at issue, which will be argued before the justices on Dec. 1, makes exceptions to the 15-week ban only for a medical emergency or “severe fetal abnormality.”

Mississippi’s appeal comes after losing two rounds in the lower courts. In 2019, the U.S. Court of Appeals for the 5th Circuit held that the state’s restriction was an unconstitutional ban on a woman’s right to terminate an unwanted pregnancy before viability.

The appeals court found that Mississippi’s restriction violated “an unbroken line dating to Roe v. Wade” in which the Supreme Court has consistently reaffirmed “a woman’s right to choose an abortion before viability,” typically around 24 weeks of pregnancy.

But Fitch, in her court brief, was explicit about Mississippi’s desire to see that line of cases broken.

“On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight,” Fitch wrote. “Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion.”

A decision in the Mississippi case, Dobbs v. Jackson Women’s Health Organization, is expected by July, just months before the 2022 midterm elections.