Scotus preview for big abortion rights case from Mississippi to be argued next week

The future of abortion rights in the U. S. is now before the Supreme Court, where the 6-3 conservative majority may be poised to strike down or severely limit the impact of the landmark Roe v. Wade decision legalizing the controversial procedure.

An upcoming case from Mississippi represents arguably the court's most dramatic opportunity to overturn its own precedent since Brown v. Board of Education.

That may be because few social issues draw as much personal and political passion as the constitutional right to abortion, with the nationwide legal fights over its access dating back nearly 50 years.

The nine justices on Wednesday morning will hear a challenge to a government ban on abortions after 15 weeks

At issue: whether any state law that prohibits pre-viability elective abortions is unconstitutional. Mississippi officials are boldly asking the court to overturn its 1973 Roe precedent, where abortions are legal nationwide until about the 24th week-- the point of viability where the fetus can survive outside the womb.

Lower courts have blocked that and a subsequent state law banning abortion after six weeks.

The state's only remaining abortion clinic, backed by the Biden administration, has asked the court to uphold Roe's core holding, and to invalidate the Mississippi statute. It was enacted in 2018, but lower federal courts have blocked its enforcement.

Jackson Women’s Health Organization-- the state's sole abortion clinic currently in operation-- only performs surgical abortions up to 16 weeks of pregnancy. In legal briefs, the medical facility says about 100 abortions are done annually after the 15th week, the state cutoff.

JWHO's director says the issue is more than just a medical debate, and that she is bracing for the worst from the Supreme Court.

"Abortion is absolutely a racial and economic justice issue," said Shannon Brewer, in a recent New York Times op-ed. "The [restrictive state] laws are inherently racist and classist; they keep Black and Brown people down. And the research is clear: A woman who is denied an abortion is more likely to live in poverty even years later."

But the state has asked the high court to strike down its precedent, in the name of states' rights.

"The Roe decision shackles states to a view of facts that is decades old, such that while science, medicine, technology, and culture have all rapidly progressed since 1973, duly enacted laws on abortion are unable to keep up," said Lynn Fitch, Mississippi Attorney General. "The Supreme Court can return decision-making about abortion policy to the elected leaders and allow the people to empower women and promote life."

Bans on abortion in the United States began early in the 19th century. Connecticut in 1821 became first state to outlaw them, specifically after "quickening," the time in the pregnancy when the woman starts to feel fetal movements.

The laws were designed primarily to protect women from dangerous "back alley" abortions. These laws were also ambiguous, given the Victorian moral code that stifled debate on so personal a subject as unwanted pregnancies. Since then, movements have come and gone to relax the restrictions or to give women more choice, but such efforts mostly went nowhere.

It was not until the 1960s that an organized movement was launched to ease the laws regulating abortions. Medical technology had advanced to the point where they could be done safely by trained medical staff in clean, professional environments. By the early 1970s, a number of states had changed their laws, though most did so in very limited ways.

The legal fights culminated with Roe v. Wade, the court's 7-2 decision giving women a qualified constitutional right to abortion during most of the pregnancy. The court, in fact, heard two cases around the same time: Roe (aka Norma McCorvey, who later become an abortion opponent), which challenged a Texas law banning abortions except to save the woman's life; and Doe v. Bolton, involving a Georgia law requiring that abortions be performed only in accredited hospitals and only after a review by a hospital staff committee and an exam by two doctors other than the woman's physician.

The Roe and Doe rulings affected laws in 46 states.

For the justices, Roe reflected earlier cases involving the right to privacy. That "right," wrote Justice Harry Blackmun in the main opinion for the court, is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

But the ruling was a qualified one, and that fact has been used by abortion opponents in their efforts to narrow the scope of other abortion provisions. Blackmun noted that the state's "important interests in safeguarding health, maintaining medical standards, and protecting potential life" are compelling enough to justify regulation "at some point in pregnancy."

The abortion issue has been revisited several times since Roe, most famously in Planned Parenthood v. Casey (1992).

That 5-4 decision reaffirmed the heart of Roe while giving states the power to regulate procedures so long as they did not impose an "undue burden" on a woman's right to abortion. The standard: undue burden exists if "the purpose and effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability." The ruling left supporters on both sides of the issue dissatisfied, feeling it was ambiguous.

In the nearly three decades since, the high court had shied away from directly confronting the Roe precedent. But abortion opponents-- including those in state legislatures-- saw the appointment of three justices by President Trump as an opportunity to aggressively pursue abortion restrictions, designed to test the court's fealty to its earlier rulings.

They cheered when the high court agreed to separately review restrictions from Mississippi and Texas.

The views of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett will all be key to the outcome in both cases.

Pre-viability abortion bans were enacted in 12 states since 2019-- Alabama, Arkansas, Georgia, Kentucky, Louisiana, Montana, Missouri, Ohio, Oklahoma, South Carolina, Utah and Tennessee-- and all of them struck down by lower federal courts.

But Texas' six-week ban was allowed to go into effect, in a late-night Supreme Court order i... (Read more)

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