US Supreme Court hearing arguments in case that could overturn landmark abortion ruling in Roe v Wade

Pro-choice and anti-abortion demonstrators rally outside the US Supreme Court on Nov. 1 in Washington, DC (PHOTO: Drew Angerer/Getty Images/Fox News)

See also: Pence asks Supreme Court to overturn Roe: ‘Nothing has been more destabilising in our society’ than abortion

By Sam Dorman — Originally published in Fox News

The scope of abortion in the US is at stake today as the Supreme Court hears oral arguments in Dobbs v Jackson Women’s Health, potentially the most consequential challenge to the 1973 Roe v Wade landmark ruling that limited government restrictions on abortion. Here are some key details about the case and what you can expect:

What’s happening? 

The state of Mississippi will be arguing that the Supreme Court should allow it and other states to ban abortion after 15 weeks. More specifically, it’s asking the court to strike down a lower court’s decision blocking its 15-week abortion ban from taking effect. Passed in 2018, Mississippi’s law encountered a legal challenge from Jackson Women’s Health Organization, an abortion clinic that claims Mississippi’s law is unconstitutional and should be permanently blocked because it violates previous court decisions on the issue.  

The court’s nine justices will be present and have the chance to ask both sides about their reasoning. For Mississippi, the state’s solicitor general, Scott Stewart, will be arguing in favor of the law. On the other side will be attorney Julie Rikelman and US Solicitor General Elizabeth Prelogar.

What’s at stake? 

Mississippi is asking the court to overturn longstanding abortion precedent in Roe v Wade and Planned Parenthood v Casey – two landmark cases that prevented state governments from banning abortions at certain points during pregnancy. In doing so, it could radically alter the landscape of abortion access as many red [Republican] states are prepared to quickly pass laws permitting further restricting access. Several states, for example, have passed “trigger laws” designed to immediately restrict abortion once the Supreme Court overturns Roe.

Meanwhile, blue [Democrat] and purple [no clear majority for Republicans or Democrats] states are expected to face renewed political opposition as they attempt to maintain less restrictive laws. Anti-abortion advocates see a victory in Dobbs as just the beginning since it would return the issue to state-level battlefields. Whatever the outcome, it’s unlikely that either side of the debate will stop fighting for their cause. Decisions in either direction, however, would be huge blows to movements that have worked for decades to enact their agenda into law. The political fallout of an anti-abortion win could be explosive with Democrats already considering codifying Roe at the federal level and packing the courts.

What are the main arguments? 

Roe and Casey are vital precedent: Jackson Women’s Health Organization has repeatedly underscored the longstanding precedents established by Roe and Casey. Mississippi’s law, it argues, fails to pass Casey’s requirement that state laws not impose an “undue burden” on access to abortions before viability. Upholding Mississippi’s law would be inconsistent with stare decisis, or the principal that courts let previous decisions stand.

“The very essence of those decisions [Roe and Casey] is the right of every individual to decide whether to continue a pre-viability pregnancy to term,” its brief reads. It also argues that “[t]here is no special justification for a different outcome now. Mississippi does not meaningfully engage with the personal autonomy and bodily integrity interests that underpin constitutional protection for the right to decide whether to continue a pregnancy.”

States have an interest in protecting life, women’s health: Mississippi’s brief argues that its law “rationally furthers valid interests in protecting unborn life, women’s health, and the medical profession’s integrity.” The law’s 15-week limit comes, in part, from the state’s contention that women face a greater risk of complications from abortions after that point. It also argues that “scientific advances show that an unborn child has taken on the human form and features months before viability.”

The other side has argued that abortions are generally safe. It added that “permitting states to prohibit abortion before viability would harm the health of people who need to end a pregnancy. The only alternative to abortion is continued pregnancy and childbirth— which carries substantial risks.”

Viability is a flawed standard:  The court’s decision will likely center on whether viability is an appropriate benchmark for limiting abortions. Mississippi is arguing that the court should instead rule that states can prohibit elective abortions if they have a “rational basis” for doing so. “Rational basis” is a relatively low standard for reviewing laws, but conservatives argue that the text of the Constitution provides no further protection for abortion. 

Roe and Casey, they say, essentially invented a nonexistent right and cordoned off authority typically reserved for states. “Roe and Casey are unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law—and, in doing so, harmed this Court,” the state’s attorney’s argued.

Supreme Court nominee Amy Coney Barrett testifies during the third day of her confirmation hearings before the Senate Judiciary Committee on Capitol Hill in Washington, on Wednesday October 14 2020. (PHOTO: Andrew Caballero-Reynolds/Pool via AP/Fox News)

How might the justices rule?

There appear to be three primary avenues the justices could take in deciding Dobbs. 

Strike down Mississippi’s law: A majority of justices could eliminate the 15-week ban, claiming that it violates longstanding precedent in Roe and Casey. In doing so, it would likely uphold the idea that states can’t impose an “undue burden” on women’s access to abortion prior to fetal viability. However, the court’s more conservative composition, 6-3 since the addition of Justice Amy Coney Barrett, has prompted observers to downplay this possibility. They argue that the fact the court took such a direct challenge to Roe indicates a willingness to reshape precedent.

Overturn Roe and Casey: Some have expressed scepticism that more conservative justices like Barrett, Brett Kavanaugh and John Roberts, would agree to this option given the tense political atmosphere and divisive nature of the topic. Each has been associated with more modest, incremental decisions – a stark contrast with eliminating a nearly 50-year-old precedent. The court typically abides by stare decisis – a doctrine which defers to previous decisions – but has struck down precedent as it did with school segregation case Brown v. Board of Education roughly 50 years after Plessy v Ferguson.

Create a new standard: The court could once again – as it did in Casey and Roe – issue more specific guidance for when states may restrict abortion. It’s hard to predict what this would look like.

Polling has also shown substantial opposition to overturning Roe – making an outright appeal less politically viable for the court. Anti-abortion advocates note, however, that Roe and its companion case, Doe, effectively allow for abortion for a broad range of reasons up until birth. That would appear to conflict with Americans’ general preference for some restrictions on the procedure.

Mississippi’s 15-week restriction arguably opens an array of possible justifications the justices could use in allowing states to restrict abortion access. For example, the justices could rule that the possibility of foetal pain – rather than viability outside the womb – justifies state intervention at an earlier stage in pregnancy. It could also re-examine the state’s interest in protecting life both in light of updated scientific knowledge and advancements in medical care. 

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