With Roe v. Wade hanging by a thread, the U.S. Supreme Court has agreed to consider a major rollback of abortion rights.
It is the second time in weeks that the court’s new conservative majority has signaled a willingness to reconsider long-established legal doctrine, this time on abortion, and just weeks ago, on guns.
The court said Monday it would review next term whether all state laws that ban pre-viability abortions are unconstitutional. The court’s 1973 ruling in Roe v. Wade declared that a woman has a constitutional right to terminate a pregnancy in the first six months when the fetus is incapable of surviving outside the womb.
The test case is from Mississippi, which bans most abortions after 15 weeks, significantly before fetal viability. A panel of the 5th U.S. Circuit Court of Appeals, one of the most conservative in the country, blocked enforcement of the law, finding it in conflict with Roe v. Wade and subsequent abortion decisions.
The Mississippi case has been sitting on the court’s docket awaiting disposition for months, with the state urging the justices to use the state’s appeal as a vehicle for reconsidering its abortion jurisprudence. There is no indication of why the court stayed its hand for so long, but it may have been waiting for oral arguments for the term to be over before taking action.
Mississippi’s law is one of many that conservative states have passed in the last year seeking to eliminate or severely restrict abortion.
“The consequences of a Roe reversal would be devastating,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “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.”
Bans on pre-viability abortion bans have been struck down, until now, in a dozen states since 2019, including Alabama, Arkansas, Georgia, Kentucky, Louisiana, Montana, Missouri, Ohio, Oklahoma, South Carolina, Utah and Tennessee.
In 2016, the Supreme Court let stand similar rulings that struck down a six-week ban in North Dakota and a 12-week ban in Arkansas. That same year, the court struck down a Texas law that made it difficult and expensive for clinics that perform abortions to function.
But since then, the composition of the court has changed dramatically, with the death of Justice Ruth Bader Ginsburg, a major advocate of reproductive rights; the retirement of Justice Anthony Kennedy, a centrist conservative who supported abortion rights; and the addition of three Trump appointees to the court.
Bottom line: The court now has a 6-3 conservative majority, with all of the six having taken positions hostile to abortion rights at one time or another, and the newest justice, Amy Coney Barrett, the most outspoken critic of abortion before joining the high court.
The 6-3 majority means that conservatives can lose one of their own on this issue and still prevail. That wasn’t the case as long as Chief Justice John Roberts held the deciding vote. Though he has never been a supporter of abortion rights, his approach has always been to whittle away at Roe, slowly eroding the rights tiny piece by tiny piece. But with Monday’s decision to take on the whole question of pre-viability abortion, that approach may now be on the way out, and a more direct approach on the way in — namely overturning Roe.