Supreme Court ruling in abortion-rights case expected ahead of 2022 midterms
NEW YORK - The U.S. Supreme Court on Monday agreed to review a challenge to Mississippi's 2018 law banning abortion after 15 weeks of pregnancy.
The Republican legislators who sponsored the law and the appeals court that blocked it both agreed that it was flatly unconstitutional under the landmark 1973 Roe v. Wade ruling that only the Supreme Court can overrule.
The precedent prohibited states from banning abortion before fetal viability, but the question before the justices — "whether all pre-viability prohibitions on elective abortions are unconstitutional" — suggests to experts that the court's new six-justice conservative majority is ready to hollow out the landmark ruling.
"There's no way for them to uphold this Mississippi law without ditching viability, given that viability happens at 24 weeks' gestation, and that this law prohibits abortions at 15 weeks, which is well before viability," said Mary Ziegler, a law professor at Florida State University and the author of "Abortion and the Law in America."
That has the head of the abortion-rights group challenging the law sounding alarms.
"The stakes here are extraordinarily high," Center for Reproductive Rights CEO Nancy Northup said on a Monday press call. "If the court were to weaken the right to abortion, abortion would likely be banned — banned — entirely in half of the country."
Pro-life advocates agree and are celebrating the justices' announcement.
"It gives us some optimism that they are going to start to see that unborn children are human beings that have the right to be protected in law," said Carol Tobias, the president of the National Right to Life Committee.
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Last June, by a 5-4 vote, the Supreme Court struck down a Louisiana law regulating abortion facilities. Chief Justice John Roberts provided the court's then-four justice liberal block its fifth vote despite voting to uphold a virtually identical Texas regulation in 2016. In a separate opinion, Roberts said he was respecting recent precedent but cast doubt over the court's more permissive abortion jurisprudence.
Roberts' vote was widely seen as an effort to blunt the impression that the court's rulings were susceptible to changes on the high court's bench after the conservative Justice Brett Kavanaugh replaced the court's swing voter, Justice Anthony Kennedy.
The Mississippi law, however, presents an entirely different issue, and the court's conservative bloc grew yet again with the confirmation of Justice Amy Coney Barrett to replace the late liberal Justice Ruth Bader Ginsburg.
And that, Zielger said, may have made all the difference.
"The fact that this is a challenge that the court is even considering is a reflection of the fact that Brett Kavanaugh and Amy Coney Barrett are on the court," Zielger said.
Mississippi's lawmakers and those in several other states, in fact, cited the court's changing composition when passing their pre-viability abortion bans, admitting they would set up test cases bound for the Supreme Court.
Still, Center for Reproductive Rights' Northup said her group has not given up the hope that Roe will remain good law when the decision in Dobbs v. Jackson Women's Health Organization comes down by summer 2022, just as the midterm elections campaign season heats up.
"We will be going and arguing for every single vote on the Supreme Court and we will be looking for being able to be persuasive," Northup said.