Abortion rights face most difficult test yet at Supreme Court

Abortion rights groups are issuing dire warnings that abortion access is likely to be sharply curtailed across the country if the Supreme Court uses a Mississippi case to overturn the Roe v. Wade decision.

The admonishments come after Mississippi on Thursday explicitly urged the justices to overturn the landmark 1973 ruling when the court reviews Mississippi’s ban on virtually all abortions after 15 weeks of pregnancy.

“It cannot be overstated how dire the implications would be if Roe v. Wade were overturned,” said Vangela Wade, president of the Mississippi Center for Justice, which is co-counsel on the case. “Women across Mississippi and this nation would lose their fundamental right to chart their own future. Instead, that power would be in the hands of the government.”

Abortion opponents are expected to face a sympathetic Supreme Court bench that includes six conservative justices — three of them nominees from former President Trump.

It is far more sympathetic than even just one year ago, when in a 2020 abortion ruling, a bare 5-4 majority voted to block a Louisiana abortion restriction, with Chief Justice John Roberts casting the deciding vote alongside Justice Ruth Bader Ginsburg and the court’s three other liberal justices.

Trump’s replacement of the late Ginsburg, a liberal stalwart, with Justice Amy Coney Barrett cemented a 6-3 conservative court, throwing the fate of the long-standing federal abortion protections into question.

A decision undercutting Roe, which first established a constitutional right to abortion, would have a cascading effect in dozens of states, advocates say. The American South and Midwest in particular could see severe restrictions and even outright bans placed on the procedure, they warn.

According to the abortion-rights think tank the Guttmacher Institute, more than 90 abortion restrictions have already been enacted this year alone, leading the group to describe 2021 as “the worst legislative year ever” for abortion rights in the U.S. 

“The 2021 abortion restrictions amplify the harm of earlier ones: Each additional restriction increases patients’ logistic, financial and legal barriers to care, especially in regions where entire clusters of states are hostile to abortion,” the group said in an updated analysis released this month. 

The court brief filed Thursday by Mississippi’s attorney general was seen as raising the stakes over the abortion case the justices will hear in their upcoming term, which begins in October. 

Calling the court’s precedent on abortion “egregiously wrong,” Attorney General Lynn Fitch (R) explicitly set the dispute over Mississippi’s restrictive law on a collision course with the landmark 1973 decision in Roe that first articulated the constitutional right to abortion.

“This Court should overrule Roe and Casey,” Fitch 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.”

Supreme Court precedent tracing back to Roe prohibits states from banning abortion before fetal viability, which occurs around 24 weeks. The Mississippi law at issue next term creates only narrow exceptions from its 15-week ban. 

The state’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 Mississippi’s restriction was an unconstitutional ban on a woman’s right to terminate an unwanted pregnancy before fetal 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.” 

But abortion rights advocates are warning that the court’s unbroken line of precedent is poised to be severed in the upcoming case — with grim consequences to follow.

The Center for Reproductive Rights analyzed abortion laws in all 50 states, the District of Columbia and several U.S. territories for a 2019 study called “What If Roe Fell?” The group inventoried what measures would be left in place if Roe were weakened or overturned, and rated jurisdictions along a continuum from “Expanded Access” to “Hostile.”

The study found that abortion would remain legal in 21 states, while 24 states and three territories would likely move to impose some form of ban. In the remaining five states, abortion would remain “accessible but vulnerable.”

Nancy Northup, who heads the group Center for Reproductive Rights, which is co-counsel in the case, called Mississippi’s legal position “stunning,” noting the “avalanche of abortion bans and restrictions that are being passed across the country.” 

“If Roe falls, half the states in the country are poised to ban abortion entirely,” said Northup. “Women of child-bearing age in the U.S. have never known a world in which they don’t have this basic right, and we will keep fighting to make sure they never will.” 

Mississippi’s brief garnered a mixed reaction among court watchers. Experts wondered whether its explicit attack on Roe was an example of audacious if brazen advocacy, or something more calculated.

Geoffrey Stone, a professor at the University of Chicago Law School, said the brief “goes far beyond what I expected.”

“It doesn’t focus on the 15-week rule, but seems to argue that any rational basis is sufficient to prohibit abortion,” he said. “To overrule Roe completely on the theory that a rational justification is sufficient is absurd.”

Other court watchers suggested that Mississippi’s shoot-the-moon approach may be designed to give the court political cover. Reining in Roe without formally overruling it could allow a conservative majority to erode abortion rights while creating the appearance of judicial restraint.

“The Court could uphold [Mississippi’s] incredibly restrictive abortion law without *formally* overruling Roe, and some will (wrongly) portray that as ‘moderate,’ ” tweeted Steve Vladeck, a law professor at the University of Texas who has argued cases before the Supreme Court.

A decision in the case, Dobbs v. Jackson Women’s Health Organization, is expected by summer 2022.