WASHINGTON (AP) — The Supreme Court agreed Monday to consider a major rollback of abortion rights, saying it will decide whether states can ban abortions before a fetus can survive outside the womb.
The court’s order sets up a showdown over abortion, probably in the fall, with a more conservative court seemingly ready to dramatically alter nearly 50 years of rulings on abortion rights.
The court first announced a woman’s constitutional right to an abortion in the 1973 Roe v. Wade decision and reaffirmed it 19 years later.
The case involves a Mississippi law (Gestational Age Act) that would prohibit abortions after the 15th week of pregnancy. The state’s ban had been blocked by lower courts as inconsistent with Supreme Court precedent that protects a woman’s right to obtain an abortion before the fetus can survive outside her womb.
“This is a landmark opportunity for the Supreme Court to recognize the right of states to protect unborn children from the horrors of painful late-term abortions,” said Susan B. Anthony List President Marjorie Dannenfelser. “Across the nation, state lawmakers acting on the will of the people have introduced 536 pro-life bills aimed at humanizing our laws and challenging the radical status quo imposed by Roe. 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 justices had put off action on the case for several months. Justice Ruth Bader Ginsburg, an abortion-rights proponent, died just before the court’s new term began in October. Her replacement, Justice Amy Coney Barrett, is the most open opponent of abortion rights to join the court in decades.
Barrett is one of three appointees of former President Donald Trump on the Supreme Court. The other two, Justices Neil Gorsuch and Brett Kavanaugh, voted in dissent last year to allow Louisiana to enforce restrictions on doctors that could have closed two of the state’s three abortion clinics.
Chief Justice John Roberts, joined by Ginsburg and the other three liberal justices, said the restrictions were virtually identical to a Texas law the court struck down in 2016.
But that majority no longer exists, even if Roberts, hardly an abortion-rights supporter in his more than 15 years on the court, sides with the more liberal justices.
The Mississippi law was enacted in 2018, but was blocked after a federal court challenge. The state’s only abortion clinic remains open. The owner, Diane Derzis, has said the clinic does abortions up to 16 weeks.
“As the only abortion clinic left in Mississippi, we see patients who have spent weeks saving up the money to travel here and pay for childcare, for a place to stay, and everything else involved. 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. Mississippi politicians have created countless barriers for people trying to access abortion, intentionally pushing them later into pregnancy. It’s all part of their strategy to eliminate abortion access entirely,” said Derzis.
The case is separate from a fight over laws enacted by Mississippi and other states that would ban most abortions as early as six weeks — when a fetal heartbeat may be detected.
A central question in the case is about viability — whether a fetus can survive outside the woman at 15 weeks. The clinic presented evidence that viability is impossible at 15 weeks, and the 5th U.S. Circuit Court of Appeals said that the state “conceded that it had identified no medical evidence that a fetus would be viable at 15 weeks.”
The Mississippi law would allow exceptions to the 15-week ban in cases of medical emergency or severe fetal abnormality. Doctors found in violation of the ban would face mandatory suspension or revocation of their medical license.
Gov. Tate Reeves (R-Miss.) released the following statement about the Supreme Court’s decision to take up the case.
The sanctity of life. The future of our children. Mississippi is at the forefront of protecting both. And that is what is at stake in the case we have been praying the U.S. Supreme Court would decide to hear.
Thanks to millions of voters in 2016, President Donald Trump appointed three new Supreme Court Justices. But make no mistake – this case is being heard not because the Court has changed, but because the science has changed.
Roe v. Wade was decided in 1973. The Casey case was decided in 1992. We know so much more about the development of unborn children today than we knew in 1993 – much less 1972. Honestly, the abortion debate has divided our country for over 50 years and many of us believe the decision to review is long past due.
We know and can detect when the heartbeat begins. We know the rate at which the brain develops. We know when the lungs have their main airways and when babies begin to practice breathing.
While the debate regarding abortion continues as one of the greatest political deliberations in America, surely we can all agree we cannot allow a child able to survive on her own to be killed by the decision of another human being.
And surely we should err on the side of caution when making that determination.Gov. Tate Reeves, R-Miss.