SCOTUS Hears Oral Arguments Today On Abortion Case That Could Overturn Roe v Wade

The Supreme Court convened this morning to hear oral arguments in Dobbs v Jackson Women’s Health Organization, a case that debates if the state of Mississippi can ban abortion at 15 weeks gestation. The case is named for Dr. Thomas Dobbs, who is the head of Mississippi’s health department, and Jackson Women’s Health Organization, which is the last abortion clinic in Mississippi.

Right now, the landmark 1973 case Roe v Wade guarantees the right to abort an unborn child up to the point of viability, usually considered to be 24 weeks gestation. But Mississippi’s case has the potential to overturn or substantially revise Roe v Wade, especially with a conservative supermajority on the bench – six of the nine Supreme Court justices lean to the right.

Abortion rights proponents worry that the court’s openness to hearing the case in the first place is a foreshadowing of its ultimate decision; the court could have refused to hear the case on the basis of precedent. 

Dobbs v Jackson Women’s Health Organization

The 2018 Mississippi law is a direct challenge to Roe v Wade, challenging whether the Constitution does indeed provide the right to abortion. It also challenges the 1992 decision in Planned Parenthood v Casey. As a result of those two cases, states can enforce some restrictions on abortion – as long as they aren’t an “undue burden” – but states can’t prohibit abortion before viability (24 weeks gestation). 

In the state’s brief, Mississippi’s attorney general, Lynn Fitch, argued that both precedents are “unprincipled decisions” not founded in the Constitution and that states should be permitted to ban abortion if those laws support legitimate government interests.

“The Constitution does not protect a right to abortion,” the brief states. “The Constitution’s text says nothing about abortion. Nothing in the Constitution’s structure implies a right to abortion or prohibits states from restricting it.”

The 2018 Mississippi law, which banned most abortions after 15 weeks of pregnancy, was blocked by lower federal courts and then appealed to the Supreme Court. Under the law, abortions were permitted in the extenuating circumstances of a fetus with severe abnormalities “incompatible with life” or when the pregnancy threatens the mother’s life or a “major bodily function.” Any doctor who ignored the ban would have their medical license suspended or revoked. 

Those who support the Mississippi law argue it’s intended to regulate "inhumane procedures," pointing out that the unborn child can feel and respond to pain by 15 weeks gestation.

Mississippi will argue multiple points: that the viability standard is arbitrary, that Roe v Wade doesn’t appropriately allow states to regulate abortion, that Roe v Wade (a nearly 50-year-old ruling) is due for a review, and that abortion is not a right guaranteed by the Constitution. 

“Today, adoption is accessible and on a wide scale women attain both professional success and a rich family life, contraceptives are more available and effective, and scientific advances show that an unborn child has taken on the human form and features months before viability. States should be able to act on those developments,” the state’s attorney general said in the brief.

Abortion rights supporters argue the Supreme Court has already made its decision and established the precedent. They further argue the Mississippi law is unconstitutional.  

“The State’s suggestion that gains in women’s status somehow support taking away their right to make basic decisions about their lives and their bodies is nonsensical,” lawyers for Jackson Women’s Health Organization wrote in their brief before the Court. “Even if the claim that the United States had achieved full gender equality were true (it is not), those gains were made while the Court has steadfastly reaffirmed the right to abortion.”

What Could Happen?

While the Supreme Court isn’t expected to issue a decision on Dobbs v Jackson Women’s Health Organization until June 2022, legal experts are making their predictions. Many agree that the court will not actually overturn Roe v Wade, but will instead issue a decision allowing greater restrictions on abortion.

However, abortion rights advocates claim that any decision that doesn’t overthrow the Mississippi law completely will open the door for states to severely limit abortion access. In fact, if Roe v Wade is overturned, then 26 states are expected to move to make abortion illegal.