Supreme Court hears Mississippi abortion case with major implications for Roe v. Wade

U.S. Supreme Court justices on Wednesday heard arguments on whether to uphold a Mississippi law that bans abortion after 15 weeks, though it will be some time before it is known whether the court's conservative majority makes sweeping changes to limit abortion rights in the United States.

Mississippi case, and recent Texas law, have come before decidedly conservative U.S. Supreme Court

Protesters face off as U.S. Supreme Court considers Mississippi abortion law

1 year ago
Duration 2:32
Pro-choice and anti-abortion advocates faced off outside the U.S. Supreme Court as the justices heard arguments over whether to overturn a restrictive Mississippi abortion law that could challenge the Roe vs. Wade decision that legalized abortion.

U.S. Supreme Court justices on Wednesday heard arguments on whether to uphold a Mississippi law that bans abortion after 15 weeks, though it will be some time before it is known whether the court's conservative majority makes sweeping changes to limit abortion rights in the United States.

The justices are being asked to overrule the court's historic 1973 Roe v. Wade decision legalizing abortion and its 1992 ruling in Planned Parenthood v. Casey, which reaffirmed Roe. In the 1992 Casey ruling, the court said Roe's "central holding" was that viability, at around 24 weeks of a pregnancy, was the earliest point at which states could ban abortion.

Mississippi argues that viability is an arbitrary standard that doesn't take sufficient account of the state's interest in regulating abortion. It also contends that scientific advances have allowed some babies who were born earlier than 24 weeks to survive, though it does not argue that the line is anywhere near 15 weeks.

The case comes to a court with a 6-3 conservative majority that has been transformed by three appointees of President Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Chief Justice John Roberts and Justice Samuel Alito were among the conservative justices who questioned the viability line, with Alito referencing those who have said the line "really doesn't make any sense."

"Why is 15 weeks not enough time?" Roberts asked at one point during the arguments, which stretched over an hour and a half.

This week, the U.S. Supreme Court will hear arguments in one of the most important cases on reproductive rights in decades. Jackson Women's Health Organization, the last remaining abortion clinic in Mississippi, has challenged a state law that would ban abortions after 15 weeks of pregnancy. The Supreme Court case could determine not just the fate of the clinic, but of the monumental 1973 ruling Roe v. Wade, which legalized abortion nationwide. Today, legal historian Mary Ziegler breaks down the Mississippi case, and explains what its potential impacts could be for reproductive rights across the United States.

For his part, Kavanaugh suggested the court should leave the issue of abortion to Congress and the states and "return to the position of neutrality."

Conservative Justice Clarence Thomas has previously called for Roe and Casey to be overruled.

Earlier in the arguments, the Supreme Court's three liberal justices said that reversing Roe and Casey would severely damage the court's legitimacy.

Justice Elena Kagan said the court doesn't easily overturn past decisions. That prevents people from thinking "this court is a political institution" and "will go back and forth depending on changes to the court's membership."

Justices Sonia Sotomayor and Stephen Breyer also suggested overturning the court's abortion precedents could damage the court. Sotomayor pointed out that 15 of 19 justices have in previous judgments upheld Casey.

"Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?" Sotomayor asked. She later added: "If people actually believe that it's all political how will we survive? How will the court survive?"

A decision on the Mississippi case is expected by late June.

Lone Mississippi clinic performs procedure

More than 90 per cent of abortions are performed in the first 13 weeks of pregnancy, well before viability, according to the federal Centers for Disease Control and Prevention.

Only about 100 patients per year get abortions after 15 weeks at Mississippi's lone abortion clinic, the Jackson Women's Health Organization. The facility does not provide abortions after 16 weeks.

Hundreds descended upon the Supreme Court in Washington, D.C., on Wednesday, with pro- and anti-abortion rights activists separated by barriers. (Jonathan Ernst/Reuters)

The clinic is arguing that the very same arguments put forth by the Mississippi government were considered and rejected by the court nearly 30 years ago in Casey. Only the membership of the court has changed since then, the clinic and its allies argue.

In its earlier rulings, the court has rooted the right to abortion in the section of the 14th Amendment that says states cannot "deprive any person of life, liberty, or property, without due process of law."

Hundreds of abortion debate partisans crowded the plaza in front of the Supreme Court, intermingling and trading chants as justices heard the arguments.

A woman who wanted to be identified only as Nancy held a sign with an American flag on it that said, "Pray."

"We need to come together to stop the murder of millions of children," she said. "I don't understand why that's so controversial. I'm out here to exercise my First Amendment right and I wish that would be respected."

The crowd rallying with the Center for Reproductive Rights swelled to about 400 as the sun rose over the majestic building, outnumbering the anti-abortion demonstrators holding up images of fetuses.

The centre's president and CEO, Nancy Northup, drew cheers when she said her organization's lawyers have defended abortion rights before the nation's highest court four times in the last six years.

"Four trips to the Supreme Court in six years is four trips too many," Northrup said. "We are here to win."

The Jackson Women's Health Organization, shown on Oct. 27, is Mississippi's only abortion clinic. (Rory Doyle/Reuters)

A month ago, the justices also heard arguments over a uniquely designed Texas law that has succeeded in getting around the Roe and Casey decisions and banning abortions in the nation's second-largest state after about six weeks of pregnancy. The dispute over the Texas law revolves around whether the law can be challenged in federal court, rather than the right to an abortion.

Despite its unusually quick consideration of the issue, the court has yet to rule on the Texas law, and the justices have refused to put that law on hold while the matter is under legal review.

More countries liberalizing abortion laws

If Roe were overturned or limited, large swathes of America could return to an era in which women who want to end a pregnancy face the choice of undergoing a potentially dangerous illegal abortion, traveling long distances to a state where the procedure remains legal and available or buying abortion pills online. The procedure would remain legal in liberal-leaning states, 15 of which have laws protecting abortion rights.

Such a decision would go against global trends and public opinion. A 2019 report from the Council of Foreign Relations indicated that since 2000, 29 countries had changed their abortion laws, expanding the legal grounds on which women can access abortion services in all but one case.

While the subject is contentious, a June Reuters/Ipsos poll of U.S. adults found that 52 per cent of respondents said abortion should be legal in all or most cases, while 36 per cent said it should be illegal in most or all cases. A 2019 Pew Research survey of U.S. Catholics found that 56 per cent believed abortion should be legal in all or most cases, with 42 per cent responding it should be illegal in all or most cases.

A 2019 report from the Guttmacher Institute, a research group, indicated that the number and rates of abortion had declined to their lowest levels since 1973, paced by a declining birth rate and the fact the Affordable Care Act requires most private health insurance plans to cover contraceptives without out-of-pocket costs.

The group found that medication abortion, through the so-called abortion pill, accounted for 36 per cent of all abortions in 2017, up from 24 per cent in 2014.

With files from CBC News and Reuters