Supreme Court appears likely to uphold restrictive Mississippi abortion ban

The Roe v. Wade precedent hangs in the balance as the court considers new limits to abortion.

Supreme Court on December 1 signalled support for upholding the restrictive 15-week Mississippi abortion ban during oral arguments in Dobbs v. Jackson Women's Health Organization. Source: "US Supreme Court" by zacklur is licensed under CC BY-NC-SA 2.0

The U.S. Supreme Court on December 1 appeared poised to uphold a restrictive Mississippi abortion law in a case with the potential to overturn the landmark 1973 decision of Roe v. Wade.

Dobbs v. Jackson Women's Health Organization challenges a Mississippi law that bans nearly all abortions after 15 weeks. The court’s conservative judges, who constitute a 6-3 majority on the bench, signaled they were prepared to set new limits on the right to an abortion during nearly two hours of tense debate. Such a move would represent a departure from nearly a half-century of the Court’s abortion jurisprudence and would dismantle the abortion rights precedent established by Roe v. Wade and reaffirmed by 1992′s Planned Parenthood v. Casey.

If the court were to side with Mississippi, the ruling would erode one of the central holdings of the decades-old precedent in Roe that prevented states from banning abortion before the age of fetal viability, which is typically considered to be between 22 and 24 weeks into a pregnancy. During the arguments, the Court’s conservatives questioned the viability threshold. 

“Viability, it seems to me, doesn’t have anything to do with choice,” Chief Justice Roberts said. “If it really is an issue about choice, why is 15 weeks not enough time?” He further noted that the 15-week mark is the “standard that the vast majority of other countries have.”

Justice Brett Kavanaugh argued that the Constitution is neutral on the issue of abortion and suggested the court should leave the decision to Congress and the states. 

Kavanaugh asserted, “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people, being able to resolve this? And there'll be different answers in Mississippi than New York, different answers in Alabama than California, because they're two different interests at stake and the people in those states might value those interests somewhat differently.” 

At least 20 states are expected to make almost all abortions unlawful should Roe be overturned. This ruling has the potential to effectively end legal abortion access for women in much of the American South and Midwest, especially those who cannot afford to travel across state lines to obtain the procedure. 

As former President Trump’s court nominees questioned the viability line, Attorney Julie Rikelman, a lawyer arguing on behalf of the abortion clinic, said the Mississippi law would do “profound damage to women’s liberty, equality and the rule of law.”

The three liberal justices on the nine-member bench were adamant that Roe should stand, while expressing concerns that reversing the decisions of Roe and Casey would harm public perceptions of the court and make the institution appear political.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” asked Justice Sonia Sotomayor. She added, “I don’t see how it is possible.” 

Justice Stephen Breyer also suggested that overturning decades of abortion precedent could damage the court. He explained that the issue in a “super case” like the Mississippi abortion ban is that the American people will come to see justices as “just politicians.”

While abortion remains an issue that divides the nation, it is evident that the majority supports the court’s abortion precedent. According to a recent Washington Post-ABC News poll, 60% of Americans say that the Supreme Court should uphold the Roe decision.

The Court’s ruling on Dobbs v. Jackson Women's Health Organization is expected in June.