By Amy Howe
on May 17, 2021
at 11:55 a.m.
Pro-choice proponents protest in front of the Supreme Court in early March 2020 (Casey Quinlan)
The Supreme Court on Monday paved the way for an important decision on abortion next year – a decision that could upset the landmark Supreme Court rulings in the Roe v Wade and Planned Parenthood v Casey cases, in which the court ruled has ruled that the constitution protects the right to have an abortion to have an abortion before a fetus becomes viable. The court issued a review in Dobbs v Jackson Women’s Health Organization, a challenge to the constitutionality of a Mississippi law that prohibits (with limited exceptions) abortion after the 15th week of pregnancy.
The Mississippi bill review decision comes almost a year after the court passed Louisiana law giving doctors who perform abortions the right to admit patients to a nearby hospital. In this case, five judges, including Chief Justice John Roberts, relied on Casey in ruling that Louisiana law unduly encumbered the right to an abortion before viability. However, the composition of the Supreme Court has changed since the Louisiana ruling last June: One of the majority judges, Judge Ruth Bader Ginsburg, a staunch advocate of abortion rights, died in September and was replaced by Judge Amy Coney Barrett, whose personal opposition to abortion was criticized by Democrats at their confirmation hearing.
When Mississippi lawmakers passed the law at the center of the case in 2018, the Jackson Women’s Health Organization – the only licensed abortion provider in the state – went to court to challenge the constitutionality of the law and prevent the state from enforce it. A federal district court agreed to the clinic, ruling that the Supreme Court cases do not allow states to ban abortions before a fetus becomes viable, which is around the 24th week of pregnancy.
The US Court of Appeals for the 5th Circuit upheld this ruling, dismissing Mississippi’s argument that the District Court should instead determine in the Supreme Court cases whether the law poses a “significant obstacle” to a person seeking an abortion before proceeding the fetus becomes viable. There is no major obstacle, the state suggested, as a patient could opt for an abortion before week 15. The Mississippi Act isn’t just a restriction on the availability of abortions before viability, the appeals court stressed. There is a ban on abortion before viability. The law prohibits all abortions after 15 weeks, except in cases of health emergencies or fetal abnormalities.
The state went to the Supreme Court last summer asking the judges to decide whether any bans on abortion before viability are unconstitutional. The state also asked judges to weigh two related questions: whether courts should consider a state’s interests – such as protecting a mother’s health – when reviewing the constitutionality of laws restricting abortions before viability, and whether abortion providers are legal Right to challenge laws that prohibit or restrict abortion on behalf of their patients.
The clinic urged the Supreme Court to stay out of the dispute, stressing that the Supreme Court has long believed that the Constitution protects the right to terminate a pregnancy before the fetus becomes viable. The court should refuse to review whether abortion providers have the right to sue, the clinic added, because Mississippi “waived this challenge – it was not addressed below, and the state did indeed grant jurisdiction and do so in its petition again. ”
The judges have repeatedly postponed the case – that is, not considering it at their private conference – before finally considering the state’s motion for review for the first time at their January 8, 2021 conference. The judges then examined the petition 12 more times before announcing on Monday that they would take up the first question asked in the state’s petition: whether all polling bans are in violation of the constitution.
The case will be heard in the fall after the judges return from their summer break. It joins the New York State Rifle & Pistol Association against Corlett, another high profile case that is already on trial for the next term and concerns gun rights. Before they head into the summer recess, the court could put a third hot button issue on the table for the 2021-22 term: They’ll likely decide at one of their conferences at the end of June whether they want to consider a challenge for Harvard’s races. conscious admission policy.
This article was originally published by Howe on the Court.