The conservative majority on the court now has ample opportunity to abolish abortion.
Just a few days before Justice Amy Coney Barrett was sworn in, Mississippi yet again urged the Supreme Court to take up its 15-week abortion ban. It would be a perfect vehicle for the court to continue to undermine the right to choose now that there is a solid anti-abortion majority on the bench.
And now, with the court's announcement that they'll consider the case at its next conference, it looks like Barrett could hear her first abortion case — one that could genuinely undo Roe v. Wade — just a few months after taking the bench.
The case has been up at the court since March of this year, and anti-choice activists and legislators have filed numerous briefs requesting the court hear the case. At first glance, it looks like dozens of other anti-abortion cases from conservative states. In March 2018, the state passed a highly restrictive 15-week ban, at that time the earliest in the country. The state already had a 20-week ban on the books.
Almost immediately, the law was temporarily blocked, with a permanent injunction being issued in late 2018. Disposing of the case should have been a simple issue, as a 15-week ban is well before a pregnancy becomes viable. The cornerstone of Roe is that the government may not bar someone from obtaining an abortion prior to viability.
Over time, much of the court's analysis has shifted to restrictions rather than bans — whether the law presents an undue burden. Four years ago, in Whole Women's Health v. Hellerstedt, the Supreme Court reaffirmed that laws that place a "substantial obstacle" in the way of people seeking an abortion before a pregnancy is viable is unconstitutional.
Medical professionals place viability well after 15 weeks. Hal Lawrence, the executive vice president of the American Congress of Obstetricians and Gynecologists, said, "There's no evidence of a 20-week fetus surviving, even with intensive medical care." Instead, viability is more often said to be at the 24- to 28-week range.
With that, there should be no rational reason for the court to take the Mississippi case, as pre-viability bans are unconstitutional. But Mississippi is explicitly urging the court to throw out the viability standard altogether.
Chief Justice John Roberts is partially responsible for this turn of events. In the court's most recent abortion case, June Medical Services v. Russo, Roberts concurred with the majority on very narrow grounds. The liberal wing of the court held that Louisiana's admitting privileges law imposed an undue burden on someone seeking an abortion. Roberts concurred, but only to agree that the holding in Whole Women's Health, which dealt with an identical admitting privileges law in Texas, controlled in June Medical as well.
Roberts took the opportunity to list all of the other types of burdens he would find perfectly acceptable, including mandatory waiting periods, parental consent laws, and requiring so-called "counseling." His only real objection to Louisiana's law was that it was identical to the Texas law in Whole Women's Health. With such a framing, Roberts implicitly asked litigants to bring the court a different case with a restriction less identical to those the court has already struck down.
However, the burdens discussed by Roberts and the burden at issue in both June Medical and Whole Women's Health are regulations, not bans. They don't purport to bar people from getting abortions entirely. Rather, they are there to make abortions hard to obtain without going so far as to ban them.
Rewire News pointed out that what Mississippi seems to be doing is apply the logic of analyzing regulations — how hard does this regulation make it for people to get an abortion? — and grafting it onto the entirely different situation of a complete ban.
But bans don't make it harder to get abortions — they make them illegal. And Mississippi proposes to do so well before a pregnancy could possibly be considered viable. With that, the state is asking the court to depart sharply from Roe and to examine whether pre-viability bans can be considered constitutional.
Only four justices need to vote to hear a case. Even if Roberts were to decline to hear the case, today, the court has five Justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and now Barrett — who have demonstrated a near-complete antipathy to abortion rights. Three of those justices were appointed by Trump, who specifically said he would only appoint justices who would overrule Roe.
And, as CBS News noted, if the court doesn't see this case as a good vehicle to undermine or overturn Roe, there are 17 more cases currently in the pipeline at the federal appellate courts. The conservative anti-abortion majority on the court will have ample opportunity to abolish abortion, be it incrementally or all at once.
Published with permission of The American Independent Foundation.