The U.S. Supreme Court on Monday said it will review Mississippi’s ban on abortions after 15 weeks of pregnancy — serving as the first opportunity for the 6-3 conservative-majority court to challenge Roe v. Wade.
The 15-week ban, passed by state lawmakers in 2018 and immediately blocked by lower federal courts, will provide one of the first reproductive rights cases argued before the Supreme Court since Justice Amy Coney Barrett was confirmed in 2020. The 6-3 conservative majority is widely expected to curtail access to abortion.
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“As the only abortion clinic left in Mississippi, we see patients who have spent week saving up the money to travel here and pay for childcare, for a place to stay, and everything else involved. If this ban were to take effect, we would be forced to turn many of those patients away, and they would lose the right to abortion in the state,” Diane Derziz, owner of Jackson Women’s Health Organization, the state’s sole abortion clinic, said in a statement. “Mississippi politicians have created countless barriers for people trying to access abortion, intentionally pushing them later in the pregnancy. It’s all part of their strategy to eliminate abortion access entirely.”
The court met 13 different times to consider taking the case, a move many legal analysts have called unprecedented. The taking of this case marks the first time since the landmark 1973 abortion rights case Roe v. Wade that the U.S. Supreme Court has taken up a a pre-viability ban case — a law that prohibits access to abortion based on the amount of time pregnant before the fetus is viable, or around 24 weeks when it is able to live outside the womb.
The authors of Mississippi’s abortion ban bill said their intent in 2018 for passing then the strictest-in-the-nation abortion ban was that the U.S. Supreme Court could challenge Roe v. Wade.
“Assuming this bill were to become law, these challenges take two to three years to make their way up to the Supreme Court,” state Sen. Joey Fillingane, the Republican who authored the bill, said at the time. “The United States Supreme Court … has indicated that the state has a couple of interests when it comes to regulating abortion. One is protecting the health and life of the mother. Another is protecting the potentiality of human life.”
The only abortion clinic in Mississippi, which provides abortions until 16 weeks, sued the state after Republican Gov. Phil Bryant signed the law in 2018. The case has been in the federal court appeals process since then.
Legal precedent dictates that states do have legitimate interests in restricting abortion, but that states cannot outright prohibit abortions before viability, nor require an “undue burden” on women seeking an abortion. Courts have said Mississippi’s law banning abortion after 15 weeks does not meet the viability standard. The state has argued that the law is not a ban, and that the “undue burden” standard should come into factor.
If Roe is overturned or its scope limited, abortion would not immediately become illegal across the U.S. But it could allow states to ban or continue to severely limit it.
Both the state’s 2018 15-week law and subsequent stricter 2019 6-week law were ruled unconstitutional twice in the last two years — by both a U.S. District Court and the 5th Circuit Court of Appeals.
After the New Orleans-based federal appeals court upheld the lower ruling by also overturning both Mississippi’s 15-week and 6-week bans in 2019 and 2020. Attorney General Lynn Fitch petitioned the Supreme Court to take the case, citing state’s interests in regulating abortion.
The Center for Reproductive Rights, which represents Jackson Women’s Health Organization, responded in August by asking the Court to deny hearing the case based on long-standing precedent. Fitch filed again in October, after the high court three times postponed their conference to decide to take the case or not — twice after Justice Ruth Bader Ginsberg’s death — pointing to two recent cases that differently interpreted the court’s last abortion case, June Medical vs Russo that allowed an abortion clinic to stay open.
Per precedent, states can regulate abortion before viability, but not outright ban it. Previously, Mississippi has argued that the so-called balancing test should apply in this case — weighing the burdens and benefits of the law.
Every federal court that has heard the case has said that doesn’t apply because based on the nature of the law, an outright ban is unconstitutional regardless of the state’s interests or benefits. Essentially, a regulation that limits choice, such as other laws in Mississippi that require two doctor’s visits and waiting periods for the procedure, merit the benefit or burden test. Outright bans that eliminate choice for certain women are on their face unconstitutional and don’t warrant the balancing test.
Editor’s note: This story is breaking and will be updated.