On Monday, the Supreme Court finally announced it would hear a case on Mississippi’s 15-week abortion ban, a rule that directly challenges Roe v. Wade’s mandate that states cannot ban abortion before a fetus is viable. If Mississippi’s 2018 ban is upheld by the now-staunchly conservative court, it would not only further restrict access to abortions in a state where access is already severely limited, it would also open the door to more and more restrictive bans that up to now have been determined to be unconstitutional.
It’s the moment that Amy Coney Barrett has probably been waiting for all of her life—and a moment that abortion advocates have been dreading since she was first appointed to the Supreme Court.
Mississippi’s 2018 law, which was swiftly declared unconstitutional by lower courts and barred from being enacted, attempted to ban all abortions after 15 weeks, and made no exceptions for pregnancies resulting from rape or incest. In declaring the ban unconstitutional, the Fifth Circuit Court of Appeals harkened back to Supreme Court precedent.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability,” the judges wrote in 2019, adding, “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 Center for Reproductive Rights sued the state on behalf of the Jackson Women’s Health Organization, the sole abortion clinic operating in Mississippi. As the Center for Reproductive Rights’s senior staff attorney Hillary Schneller told Vice in 2020, “There’s no path to upholding a ban like this that doesn’t contradict Roe v. Wade’s core holding.” Schneller added, “This is a case that flies in the face of 50 years of the court’s precedent.” In a statement in response to Monday’s announcement, the Center for Reproductive Rights’s president Nancy Northrup wrote that “alarm bells are ringing loudly about the threat to reproductive rights” and that the Mississippi case is “a test case to overturn Roe v. Wade.”
In announcing it would accept the case, the justices wrote that they will be examining whether “all pre-viability prohibitions on abortion are unconstitutional.” Typically, a fetus is considered viable, or able to survive outside of the womb, at a gestational age of 24 weeks.
Whether the current Supreme Court will respect precedent in this case, as a narrow majority did in the recent June Medical Services v. Russo abortion case, is an open question. Amy Coney Barrett, in her confirmation hearings, notably refused to acknowledge Roe as super-precedent.