The moment reproductive rights advocates have feared for years is here.
On Wednesday, the Supreme Court will hear arguments in a case that poses the biggest challenge yet to Roe v. Wade, the landmark decision that made abortion legal nationwide almost 50 years ago.
While much of the recent conversation about threats to abortion access has centered on Texas — where a novel legal design has allowed the state to halt almost all abortions after six weeks of pregnancy — the court’s arguments this week will focus on a 15-week ban in Mississippi. It marks the first time since Roe that the court is set to rule on the constitutionality of a law that prohibits abortion before a fetus is viable — that is, before it can survive outside the womb. It’s also the first major abortion case to be taken up by the court since the conservative majority grew to 6–3 with the confirmation of Justice Amy Coney Barrett in 2020. (The court recently heard arguments on Texas’s ban, but in that case, the justices are only considering whether anyone can sue the state to challenge the law’s constitutionality.)
For years, laws like Mississippi’s have been struck down by the lower courts as unconstitutional because under Roe and Planned Parenthood v. Casey, the 1992 ruling that said restrictions cannot place an “undue burden” on access, states cannot ban abortion before the point of viability, which is usually around 24 weeks.
Now, in Dobbs v. Jackson Women's Health Organization, the state of Mississippi is calling on the Supreme Court to overturn Roe and Casey and uphold its 15-week ban. If the court does either — or both — large swaths of the South and Midwest will likely try to eliminate abortion access. People who can afford to travel may be able to receive care in other states where abortion is protected, but those who can’t will have to face the risks of carrying unwanted pregnancies to term or ending them in another — and potentially unsafe — way.
“If the court overrules Roe, takes this right away, allows states to ban abortion at virtually any point in pregnancy, we will see chaos for women, for the courts, for people around the country as the ripple effects are felt in many states — not just in the states that ban,” said Julie Rikelman, senior director of litigation at the Center for Reproductive Rights, which is representing Jackson Women's Health, the only remaining abortion clinic in Mississippi.
It’s difficult to say at this point what the Supreme Court will actually do. Here’s what we know about the potential outcomes and what’s at stake.
What would the Mississippi law do if allowed to take effect?
Signed into law in March 2018, the Mississippi Gestational Age Act prohibits abortions after 15 weeks in gestation except when the life of the pregnant person is in danger or if there is "a severe fetal abnormality" that would prevent the fetus from surviving outside the womb. Doctors who violate the law would have their licenses suspended or revoked and could face a fine.
The law was immediately put on hold after Jackson Women’s Health sued the state and then repeatedly blocked by the district and appellate courts. If the Supreme Court reverses the lower court’s judgment and upholds the state’s ban, it would take effect immediately.
What’s at stake?
If the Supreme Court overturns Roe or weakens it by upholding Mississippi’s 15-week ban or eliminating the viability standard, 26 states would likely try to prohibit abortion, according to the Guttmacher Institute, an abortion rights research and advocacy group that tracks state legislation. As of Nov. 1, 22 states already have laws in place that they could use to enforce abortion bans. Of those, 12 have passed so-called trigger bans that are designed to take effect immediately or through quick state action if Roe is overturned, according to the institute.
In a post-Roe or post–viability standard world, those who live in areas where abortion is illegal and can afford to travel out of state will likely travel to a state where it is still accessible. But, as we’ve seen in the wake of Texas’s six-week ban, those patients may overwhelm facilities in the 15 states — plus Washington, DC — with laws in place to protect abortion. And that could result in delays in care for everyone.
Shannon Brewer, director of Jackson Women’s Health, said that as a result of Texas’s law taking effect, her clinic has increased the number of days they see patients from two or three to five or six days a week to deal with the influx of patients from the state.
“They’re panicking, they don't know what to do because they’re calling surrounding states, and a lot of those states [are] all booked up three or four weeks,” Brewer said during a Nov. 15 media briefing. “That's just one state that did that, so just imagine if the Supreme Court turns everything over to the states and says that any state can ban an abortion.”
But the patients who may be able to get an abortion elsewhere will probably represent a small fraction of those who need care. In 2014, 75% of abortion patients had low incomes, according to the Guttmacher Institute.
In Mississippi, due to the financial burden and other restrictions that make it harder for people to access abortion — and create delays in qualifying for the procedure — a ruling upholding the state’s 15-week ban would disproportionately impact poor, young, and Black women, Brewer said.
“They are going to be pushed further and further into poverty,” she said.
How are politics influencing the case?
It was only after Justice Ruth Bader Ginsburg’s death and Barrett’s confirmation — giving the Supreme Court a clear conservative majority for the first time in decades — that Mississippi said it would seek to overturn Roe.
In June 2020, when Mississippi first petitioned the court to hear its case, the state suggested it had much smaller ambitions. “To be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey,” the state attorney general’s office wrote. “They merely ask the Court to reconcile a conflict in its own precedents.
In a brief filed this July, nine months after Barrett’s confirmation, the state’s attorneys wrote, “Overruling Roe and Casey makes resolution of this case straightforward.”
Though the court has limited its scope to just one question, “Whether all pre-viability prohibitions on elective abortions are unconstitutional,” the decision to take up the case at all signaled that the justices may be willing not only to chip away at abortion rights, but also potentially to dismantle the precedents that have protected them.
What is each side arguing?
In court filings, Mississippi’s attorneys argued that the Constitution does not protect the right to abortion, and that Roe’s holding that the right to privacy protects a pregnant person’s bodily autonomy to choose whether to have an abortion is substantially different than any other liberty identified by the Supreme Court because it entails “the purposeful termination of a potential life.” They also argued that Casey’s requirement that restrictions not place an “undue burden” on abortion access before viability unfairly impedes states from creating local abortion regulations.
“Roe and Casey are egregiously wrong,” they wrote.
The state is also claiming that the improved ability of women to “attain both professional success and a rich family life,” the wider accessibility of contraception and adoption, and the knowledge that a fetus has taken on the human form before viability have essentially made abortion unnecessary. “Innumerable women and mothers have reached the highest echelons of economic and social life independent of the right endorsed in those cases,” its brief states.
Attorneys for Jackson Women's Health argued in a response brief that there have been no developments that have made the right to abortion “any less worthy of constitutional protection.” In particular, the idea that advancements in gender equality have made abortion any less vital is “nonsensical,” the clinic’s attorneys wrote, noting that the legalization of abortion has made it possible for women to participate equally in society.
Individuals who are denied the right to an abortion face greater health risks associated with continued pregnancy and childbirth, lost educational opportunities, and economic insecurity, the attorneys said.
“The right to abortion is really critical to women’s equality,” said Rikelman, one of the co-lead attorneys representing the clinic in Dobbs, said during a recent call with reporters.
What are the possible outcomes?
The Supreme Court could simply overturn Roe and Casey. However, legal experts think it’s more likely that the court will issue a narrow, yet still potentially devastating, ruling because of the political fallout explicitly getting rid of Roe would provoke.
“It would be much more legally sophisticated and confusing for the general public if the court messes with the viability standard,” Aziza Ahmed, a professor of law at the University of California Irvine, told BuzzFeed News.
And it does seem like the current court — with three justices nominated by then-president Donald Trump, who promised supporters he’d seek to overturn Roe — will try to rework the viability standard in some way that would allow at least some state laws significantly limiting abortion access to take effect. Ahmed said the court could create a new test to replace the viability standard or tinker with it in some way to allow Mississippi’s 15-week ban to take effect. It’s hard to say what that new test could be, but any ruling in favor of Mississippi would probably embolden other states to enact their own previability bans.
“If the court is sort of dropping hints that it’s going to allow much more extensive limits, then states are going to test the waters and circuit courts are going to test the waters and that's going to mean fewer people with access in practical terms,” Mary Ziegler, a professor at Florida State University College of Law and expert on the legal history of abortion in the US, told BuzzFeed News.
The other option, of course, is that the court could strike down Mississippi's law and find that “yes,” all previability bans are unconstitutional, reaffirming Roe. And while a ruling upholding the court’s precedents could preserve the institution’s legitimacy in the eyes of the public, experts said it doesn’t seem likely.
“I just can't imagine them saying, ‘We’re going to affirm all parts of this,’ when they’ve been placed on the court for the purpose of doing exactly the opposite,” Melissa Murray, a professor of law at New York University School of Law, told BuzzFeed News. “But hey, I would love to be surprised.”
When will the Supreme Court issue its ruling?
The court typically releases all of its opinions on cases heard in a given term by the end of June, before it goes on recess. The court tends to deliver decisions that are unanimous sooner than those with concurring and dissenting opinions.
Since the Dobbs case is being heard a couple of months into the court’s current term, it may not be until late May or June when the justices will issue their opinion on the case.