Mississippi Asks Supreme Court to Overrule Roe v. Wade in Upcoming Abortion Case

What’s the story?

• The Supreme Court is expected to hear a case involving the constitutionality of restrictions on pre-viability abortions in its upcoming term, and the state of Mississippi has asked the Court to consider overruling the landmark abortion case Roe v. Wade. Oral arguments will be held in the fall after the Supreme Court’s next term begins in October 2021, and a decision in the case is expected in 2022.
• Known as Dobbs v. Jackson Women’s Health, the case concerns Mississippi’s ban on elective abortions more than 15 weeks into pregnancy except in cases of medical emergencies and severe fetal abnormalities. Mississippi enacted the Gestational Age Act in 2018, although a district court judge blocked it shortly thereafter and appeals have been unsuccessful to date.
• Specifically, the Court will consider: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” The Court declined to consider whether the law should be considered in light of its “undue burden” standard under Casey or the “balancing of benefits and burdens” under Hellerstedt; or whether abortion providers have third-party standing to invalidate a law restricting late-term abortions.
• In its latest legal brief for the case, the state of Mississippi wrote, “The stare decisis case for overruling Roe and Casey is overwhelming.” It continued:

“Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition. Roe based a right to abortion on decisions protecting aspects of privacy under the Due Process Clause. But Roe broke from prior cases by invoking a general “right of privacy” unmoored from the Constitution. Notably, Casey did not embrace Roe’s reasoning. And Casey’s defense of Roe’s result—based on the liberty this Court has afforded to certain “personal decisions,” fails. Casey repeats Roe’s flaws by failing to tie a right to abortion to anything in the Constitution. And abortion is fundamentally different from any right this Court has ever endorsed. No other right involves, as abortion does, “the purposeful termination of a potential life.” So Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.”

• While the state of Mississippi is calling for Roe to be overturned, that doesn’t mean the Court will issue a decision as broad as they have requested. 
• The Supreme Court tends to follow the practice of stare decisis ― letting past precedent stand ― except in cases involving constitutional issues where there are “strong grounds” for overruling that precedent. The justices have latitude in determining how narrowly or broadly to apply that precedent.
• The uncertainty surrounding how broadly or narrowly the Supreme Court will rule on the issue is why the state of Mississippi asked for it to rule in its favor on narrower grounds if the justices are unwilling to overturn Roe and Casey:

“If this Court does not overrule Roe and Casey’s heightened-scrutiny regime outright, it should at minimum hold that there is no pre-viability barrier to state prohibitions on abortion and uphold Mississippi’s law. The court of appeals’ judgment affirming a permanent injunction of the State’s law should be reversed.”

What does the Supreme Court say about abortion rights?

• The Court’s most well-known abortion decisions came in a case known as Roe v. Wade (1973), which held that the Constitution protects a woman’s right to terminate her pregnancy. The Court held that the 14th Amendment protected personal privacy rights, including a woman’s decision about whether to carry the pregnancy to term and that only compelling state interests can justify limitations on that decision. It held that the state’s interest in protecting the mother’s health begins at the end of the first trimester, and its interest in protecting the fetus begins at the point of viability.
• The Supreme Court’s other landmark 1973 decision came in Doe v. Bolton. The Doe decision broadened the protections of Roe by putting states on notice that, similar to how states couldn’t make providing abortions illegal, states couldn’t use procedural barriers to make abortion access unreasonably difficult. It also noted that those requirements wouldn’t apply to laws protecting the religious & moral beliefs of religious or denominational hospitals & their employees.
• The Hyde Amendment, which prohibited federal funding for abortion through Medicaid, was first enacted in 1977 and survived legal challenges that reached the Supreme Court, as did state-level bills that similarly prohibited taxpayer-funded abortions. These decisions held that there is no statutory or constitutional requirement that the federal government or states fund either elective or medically necessary abortions.
• Planned Parenthood v. Casey (1992) overturned the trimester standard in Roe in favor of a viability standard, allowing states to adopt restrictions on first-trimester abortions so long as they don’t unduly burden a woman’s efforts to obtain an abortion before the fetus reaches viability. It reaffirmed Roe in three ways: a woman has a right to an abortion prior to viability; the state can restrict post-viability abortions as long as there are exceptions for the woman’s health; and that the state has legitimate interests in protecting the woman’s health and the life of the fetus. These findings resulted in Pennsylvania’s 24-hour waiting period, informed consent, parental notification, and record-keeping requirements being upheld; and the state’s spousal notification requirement being struck down.
• Stenberg v. Carhart (2000) concerned a Nebraska law that prohibited partial-birth abortions (technical term: dilation & extraction) but didn’t include an exception for abortions to save the mother’s life and could be interpreted broadly to include the more standard dilation & evacuation abortions, thus creating an unconstitutional undue burden.
• The Stenberg decision prompted the enactment of the federal Partial-Birth Abortion Ban Act, which was signed into law by President George W. Bush in 2003 and prohibited partial-birth abortions except when necessary to save the mother’s life. It faced immediate legal challenges, and the Supreme Court eventually upheld its constitutionality in Gonzales v. Carhart (2007).
• The most recent significant Supreme Court decision related to abortion came in Whole Women’s Health v. Hellerstedt (2016). It invalidated Texas laws that required abortion-providing physicians to have admitting privileges at nearby hospitals, and that their abortion facility meet the same standards as an ambulatory surgical center. The Court found that those requirements created an undue burden for abortion access, in violation of the standards it outlined in Casey.

— Eric Revell

(Photo Credit: iStock.com / JPecha)