The US Supreme Court is set to hear oral arguments on Wednesday in the biggest challenge to abortion rights in generations, as the state of Mississippi seeks to overturn a decision that legalised the procedure across the US five decades ago.
At issue is a 2018 Mississippi law that bans abortions after 15 weeks. The Jackson Women’s Health Organization, the only remaining abortion clinic in the Republican-led state, is seeking to stop the statute.
Lower courts blocked the ban, deeming it unconstitutional. But in May, the Supreme Court agreed to hear Mississippi’s case. A ruling is expected by June 2022.
The case is a defining moment in a decades-long political battle over abortion rights in the US. Mississippi has asked the Supreme Court to over-rule Roe vs Wade, the 1973 landmark decision that legalised abortion across the country, insisting that abortion is a matter for states to decide.
Anti-abortion activists have campaigned for years to undo Roe. The Mississippi case is their first opportunity to challenge the longstanding precedent since Amy Coney Barrett and Brett Kavanaugh were selected for the Supreme Court by former president Donald Trump, which has resulted in a 6-3 split between conservatives and liberal justices on the high court.
The increasingly conservative tilt on the high court has emboldened Republican-led states like Texas, which has passed one of the most restrictive laws in the country banning abortions after six weeks, before many women realise they are pregnant, with no exception for rape or incest. The Supreme Court is considering whether to temporarily block that law while legal challenges proceed.
If the court sides with Mississippi, nearly half of US states would be poised to outlaw abortion under statutes that include “trigger” provisions that automatically come into force if Roe is overturned, according to the Center for Reproductive Rights, which is litigating on behalf of the Jackson clinic.
The Mississippi case has exposed a disconnect between public opinion in the US — 70 per cent of American adults, and two-thirds of American Catholics, surveyed by Pew in 2019 said they did not want to see Roe overturned — and the deeply polarised debate over abortion, which has pit liberals against conservatives, many of whom hold strong religious beliefs.
“Roe vs Wade is egregiously wrong and unworkable. Nothing in the Constitutional text, structure, history, or tradition protects a right to an abortion,” Lynn Fitch, Mississippi attorney-general has said, calling it a matter “for the people to decide”.
In a court filing, the Jackson clinic argued the decision to end a pregnancy is enshrined in the constitution “in the fundamental rights to bodily integrity and personal autonomy in matters of family, medical care, and faith”. Allowing the government to control this choice “would result in a radical displacement of personal liberty in favour of the power of the state”, it said.
Roe said states could not ban abortions before a foetus is “viable”, or able to survive outside the womb. This viability line is typically deemed to be between 24 and 28 weeks. Mississippi is asking the Supreme Court to at least reject the viability rule, which it says is “baseless”.