Pro-life advocates hailed the Supreme Court’s decision Monday to hear a case about Mississippi’s 15-week abortion ban as the legal battle they have been hoping for since President Trump cemented a 6-3 conservative majority on the bench.
“This is a great case. Nobody can ever say exactly how justices are going to rule on a particular case … but we are very encouraged,” said Jeanne Mancini, president of March for Life.
The legal battle gives the justices a chance to revisit the landmark 1973 ruling Roe v. Wade, which legalized abortion nationwide, and subsequent precedents such as the court’s 1992 ruling in Planned Parenthood v. Casey, which upheld the right to abortion without “undue influence” from the state.
“This is the most important abortion-related case in a very long time. We are long overdue for the Supreme Court to revisit Roe v. Wade and Planned Parenthood v. Casey — cases that have led to the death of over 60 million innocent children and led many women and men to lifelong regret,” said Lila Rose, president of Live Action.
At least four of the nine justices voted to hear the case. The court’s order Monday did not identify the justices or comment on the case.
The high court will decide whether bans on elective abortion before a fetus is viable, like the Mississippi law, are constitutional.
Pro-choice advocates say the court’s announcement is a victory for pro-life politicians and expressed concerns over how the three Trump appointees — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — would rule.
“If the Supreme Court rules in favor of Mississippi, it will take the decision about whether to have an abortion away from individuals and hand it over to politicians,” said Jennifer Dalven, director of the American Civil Liberty Union’s Reproductive Freedom Project.
Nan Aron, president of the liberal Alliance for Justice, said: “President Trump made clear he would appoint justices who would overturn Roe v. Wade, and Brett Kavanaugh and Amy Coney Barrett’s records made clear they fit the bill. Now we are already seeing the possible consequences of their confirmations.”
Naomi Cahn, a legal expert in reproductive technology at the University of Virginia, said the Supreme Court’s decision on the Mississippi case could be a turning point for reproductive rights.
“We are all guessing, but we certainly think that the impact could be quite critical for the future of Roe v. Wade,” Ms. Cahn said.
The legal battle arose after Mississippi enacted in 2018 the Gestational Age Act, which bans abortions after 15 weeks except for cases with a medical emergency or severe abnormality within the fetus.
Jackson Women’s Health Organization, the state’s only abortion clinic, and a doctor who provides abortions filed a lawsuit in federal court challenging the 15-week ban once it took effect.
A lower court issued an injunction siding with the abortion clinic and the doctor. It halted enforcement of the 15-week abortion ban. The 5th U.S. Circuit Court of Appeals affirmed the district court’s decision, also siding with the abortion providers.
Mississippi officials, arguing that the state has an interest in protecting women’s health, took the case to the Supreme Court. Officials said complications from abortion after 15 weeks increase the risk of a mother’s death.
“It is downright demeaning to states and their role in the federalist system to not know in advance how courts will evaluate the validity of their laws protecting mothers, unborn infants, and the medical community and society,” Mississippi Attorney General Lynn Fitch wrote in court papers.
Pro-life advocates said the Supreme Court case offers a chance to limit late-term abortions as some other countries do. Germany allows abortions only during the first trimester. Poland outlaws most abortions unless the mother’s life is at risk.
“The U.S. is one of only seven countries around the world that allows abortion until birth, and that’s because of Roe,” said March for Life’s Ms. Mancini. “This would limit abortion after 15 weeks, and it moves us in a very good direction. It would be very popular with most of America.”
Mississippi attempted to limit abortion after six weeks, but a federal appeals court halted that law from taking effect last year.
Attorneys for Jackson Women’s Health Organization told the justices not to take up the case because Mississippi’s 15-week ban runs afoul of the high court’s precedent protecting a woman’s right to an abortion.
“Before viability, it is for the pregnant person, and not the State, to make the ultimate decision whether to continue a pregnancy,” the clinic said in its brief.
The Center for Reproductive Rights, which is part of the clinic’s legal team, said “alarm bells are ringing” because the court is deciding to revisit its abortion precedent.
“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,” said Nancy Northup, president of the Center for Reproductive Rights.
Diane Derzis, the owner of Jackson Women’s Health Organization, said some patients save up for weeks to pay for travel to the only abortion clinic in Mississippi.
“If this ban were to take effect, we would be forced to turn many of those patients away, and they would lose their right to abortion in this state,” Ms. Derzis said.
White House press secretary Jen Psaki said President Biden will codify Roe v. Wade no matter what the Supreme Court decides.
“Over the last four years, critical rights like the right to health care, the right to choose, has been under withering extreme attack, including draconian state laws, and the president and vice president are devoted to making sure every American has access to health care, including reproductive health care regardless of their income ZIP code, race, health insurance status or immigration status. As such, the president is committed to codifying Roe,” Ms. Psaki said.
Attorneys on both sides will argue the case during the court’s next term, which begins in October. A ruling is expected by the end of June 2022.
Pro-life advocates also are eyeing another angle for the courts to limit elective abortion.
Indiana and Ohio have attempted to ban discriminatory abortion, when a woman may elect to have an abortion based on the fetus’ race or disability, such as Down syndrome. Federal appeals courts have batted down those laws in recent years.
Other states have enacted increasingly strict laws aimed at cutting back on abortion. North Dakota sought to limit abortion after six weeks, and Arkansas moved to ban abortion after 12 weeks. Federal courts struck down those bans in 2015, and the high court declined to take those cases.
Meanwhile, some blue states went in the opposite direction.
In 2019, New York enacted a law allowing women to obtain abortions at any time during pregnancy if their health is at risk. Gov. Andrew Cuomo, a Democrat, said at the time that the law was necessary because Washington, then under the Trump administration, was aiming to chip away at Roe.
Lois Shepherd, a law professor at the University of Virginia, said Virginia and other states also have been cutting back on some requirements such as eliminating an ultrasound requirement and a waiting period before an abortion.
“You are seeing more of a polarization in the states with how liberal or conservative they are,” Ms. Shepherd said.