A Supreme Court pushed to the right by former president Donald Trump will hear oral arguments Wednesday in the most consequential challenge to abortion rights in decades.
The court will consider a 2018 Mississippi law that bans nearly all abortions after 15 weeks, a direct challenge to Roe v. Wade, the landmark 1973 Supreme Court ruling that legalized the procedure. The case has massive implications that could reverse nearly 50 years of precedent and return the most divisive issue in American politics to a state-by-state battleground.
Arguments will begin at 10 a.m., with a decision to be delivered before the end of the court’s term next June. Here is some background and context for following the debate:
Who is involved? The case, Dobbs v. Jackson Women’s Health Organization, refers to Mississippi’s state health officer Thomas E. Dobbs and the state’s last remaining abortion clinic, Jackson Women’s Health Organization. Hours after Mississippi’s governor signed the bill into law in 2018, the Center for Reproductive Rights filed suit challenging it on behalf of the Jackson clinic. Friend of the court briefs have been filed on behalf of hundreds of other abortion patients, legal and freedom foundations, medical associations, religious organizations, and even states.
Why are abortion rights activists so concerned about the case?
Trump promised to appoint only abortion opponents to the Supreme Court and his three appointees cemented a conservative majority. In May, the court agreed to consider the Mississippi case and in September, the court declined to block a Texas law that prohibits abortions after just six weeks.
What does the Mississippi law say?
The law bans abortions after 15 weeks in Mississippi, except in medical emergencies and cases of severe fetal abnormalities but not in instances of rape or incest. That is not as early as the Texas law banning abortion after six weeks, but is far more restrictive than guaranteed under Roe.
How does Mississippi’s law conflict with Roe v. Wade?
Roe v. Wade established abortion as a constitutional right, saying states could not bar abortion before viability, or the point a fetus could survive outside the womb. A 1992 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, affirmed that viability is the earliest point at which a state’s interest in fetal life could justify an abortion ban.
While some premature babies survive earlier delivery, viability typically begins between 23 and 24 weeks — into the sixth month of pregnancy.
Mississippi’s law would significantly narrow that window, prohibiting abortion after about 3½ months.
How did the case come before the Supreme Court?
A federal district court granted emergency relief, blocking enforcement of the law the day after it was signed, and then struck it down as unconstitutional. In December 2019, the US Court of Appeals for the Fifth Circuit affirmed the district court’s decision and threw out the law. “States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions,” the decision stated. Mississippi asked the high court to review the 15-week ban in June 2020.
What are the stakes?
Mississippi is asking the Supreme Court to consider whether all previability abortion bans are unconstitutional. The court could uphold or overrule Roe v. Wade, or it could adopt a new standard, such as the 15-week limit Mississippi enacted, rather than viability.
Medical organizations whose members oppose the 15-week ban told the media during a conference call Tuesday that there is no medical justification for such bans. Instead, they said, the bans would interfere with patient care, expand existing health inequities, and jeopardize patients’ lives.
“If states are given carte blanche to ban abortion at any arbitrary stage, pregnant people will be forced to leave states to find care,” said Dr. Maureen Phipps, CEO of the American College of Obstetricians and Gynecologists. “Lives will be at stake.”
What are the repercussions beyond Mississippi?
States that have sought to curtail abortion rights have been eagerly anticipating this moment in the hopes that a ruling will allow them to ban abortion outright or dramatically scale back the time within which it’s permitted.
Mississippi is among the 11 states that already have enacted “trigger” laws that would bar abortion automatically if Roe were overturned. The others are Arkansas, Idaho, Kentucky, Louisiana, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, and Utah. Five more states — Alabama, Arizona, Michigan, West Virginia, and Wisconsin — have abortion bans on the books that predate Roe and could again be enforced.
If the court accepts a 15-week limit on abortion, other states could push forward with legal efforts to narrow its legal time frame. Ten states have previously tried to achieve what Texas has temporarily done — ban abortion after six weeks, according to the Guttmacher Institute, a nonprofit research group that supports abortion rights. Those states are Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, North Dakota, Ohio, South Carolina, and Tennessee. Missouri sought unsuccessfully to ban abortion after eight weeks; a federal court judge struck down the law as unconstitutional but an appeals court is rehearing the case.
What would change in Massachusetts if the law is upheld or Roe is overturned?
Nothing, except perhaps abortion availability if patients from other states that enact tougher restrictions begin to seek out appointments here.
“No matter what happens in the Dobbs case, abortion care will remain safe and legal here in Massachusetts,” said Rebecca Hart Holder, executive director of Reproductive Equity Now. But she pointed to a potential “ripple effect of people who can’t access care.”
“We will feel something here and it will mean it’s harder to get appointments everywhere nationwide,” she said.
In anticipation of a successful challenge to Roe v. Wade, the Massachusetts Legislature last year enacted a measure known as the Roe Act, which codified the right to abortion into state law. The state also expanded access by lifting an age restriction that had previously required 16- and 17-year-olds seeking abortions to show parental consent or a judge’s order.
Massachusetts law limits abortions to 24 weeks, but the measure also created exceptions after 24 weeks to protect a patient’s life or physical or mental health; in cases of lethal fetal anomalies; or where the fetus is incompatible with sustained life outside the uterus.
Stephanie Ebbert can be reached at Stephanie.Ebbert@globe.com. Follow her on Twitter @StephanieEbbert.