Supreme Court to hear arguments Wednesday in Mississippi abortion rights case that could overturn Roe while justices continue to mull ruling in challenge to new Texas restrictions.
The Supreme Court will hear oral arguments Wednesday in a challenge of a Mississippi law that could overturn Roe vs. Wade, the landmark 1973 case in which a Dallas woman successfully challenged Texas’ century-old abortion ban, establishing a constitutional right to an abortion during the first two trimesters of pregnancy.
Opponents of Roe have waited years for the court to have a makeup favorable to overturning it, and they believe the current 6-3 conservative majority on the court gives them their best chance yet.
Wednesday’s arguments come a month after justices heard a case challenging new abortion restrictions in Texas. That ruling is pending.
What is the Mississippi law?
The Mississippi law — officially called the Gestational Age Act — was passed in 2018 but immediately blocked by a federal court, which said the state’s arguments for the legislation “disregard” due process and defy precedent.
The law bans abortion after 15 weeks, except in cases of medical emergencies or for severe fetal abnormality, defined as a “life-threatening physical condition… incompatible with life outside the womb.”
Why is the law being challenged?
This 15-week standard defies abortion rights established by the Supreme Court.
Roe prohibits any state restrictions during the first trimester, but during the second trimester, states can impose regulations that are “reasonably related to maternal health.” That’s why Mississippi lawmakers made women’s health a focus of the law.
The constitutional right to abortion was later reaffirmed in Planned Parenthood of Southeastern Pennsylvania vs. Casey, which said that a state can’t impose an undue burden — a substantial obstacle to a woman’s path to abortion — before fetal viability, usually around 24 weeks.
The sole abortion clinic in Mississippi, Jackson Women’s Health Organization, filed suit against the state health officer, Thomas E. Dobbs. The case will address a direct challenge to Roe: are all pre-viability prohibitions on elective abortions unconstitutional?
Will Trump appointees change the court’s dynamics?
Former President Donald Trump selected three conservative justices during his term: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. During the final 2016 presidential debate, Trump said overturning Roe “will happen, automatically” once he appoints pro-life justices.
However, experts say the conservative majority is no guarantee that Roe will be overturned. The court has only reversed itself on a topic this major and divisive once before: Brown vs. Board of Education, which ended school segregation.
Overturning Roe might be even bigger than the Brown decision, constitutional law expert Joe Kobylka of Southern Methodist University said, because it would be the first time the Supreme Court has ever established a fundamental constitutional right, then changed its mind.
What’s known about justices’ stances on the issue?
Here is where each justice may fall on the Mississippi law, based on interviews with three legal and political experts — SMU political scientist Cal Jillson, SMU Supreme Court specialist Joe Kobylka and Dallas lawyer David Coale.
Chief Justice John Roberts is likely to vote to uphold Roe, but it would be a decision based on a precedent and legal integrity, not on ideology, the experts agreed.
In Whole Woman’s Health vs. Hellerstedt — a 2016 case about hospital admittance privileges — Roberts dissented from the court’s majority, voting to uphold the abortion restrictions.
However, when a “nearly identical” case arose in 2020, June Medical Services vs. Russo, Roberts voted to strike down restrictions. He wrote the court’s opinion, arguing that he still believed the 2016 case “was wrongly decided,” but upheld it as a valid precedent.
“He voted with people who support the abortion right, but not necessarily because he supports the abortion right, but because the precedent,” Kobylka said.
Roberts also must consider the credibility of the high court and guard against the perception it is unduly influenced by politics, the experts said.
“As chief justice, he has to think about the integrity and standing of the court within the American constitutional system and public opinion,” Jillson said.
Should Roe be overturned by three conservative justices elected during one presidential term, the Supreme Court would look like a political tool, Kobylka said. Such perceptions have troubled Roberts before.
While Roberts may eventually want to overturn Roe, he will “tap the brakes and ease into it slowly,” Kobylka said.
Trump’s appointees — Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh — are more uncertain votes, but Roberts could influence them, the experts said.
None of them ideologically support a right to abortion. However, Kobylka said, “they have not, in any judicial opinion, said, ‘I would like to overturn the abortion right.’”
A convincing precedent argument from Roberts could sway any of these justices toward upholding Roe in the Mississippi hearings, the experts said.
Gorsuch may be the least likely of the three to go with Roberts. He has a slightly more consistent record of judicial opinions opposing abortion rights, and he dissented in a 2020 case that overturned Louisiana restrictions.
Barrett said her “views on this or any other question will have no bearing on my discharge of my duties as a judge” when asked about her long personal history opposing abortion rights. As an appeals court judge, she also stated that she will follow the Supreme Court’s precedent on abortion.
Additionally, Kobylka said he thinks that given the rushed nature of her confirmation under Trump, she may vote to uphold Roe to avoid looking like a political tool.
Kavanaugh has sided with abortion restrictions as a justice, but he has also shown an interest in considering precedent over ideology.
“Kavanaugh has been following Roberts in a whole series of decisions on abortion and other issues during his relatively brief time on the court,” Jillson said.
Justices Stephen Breyer, Elana Kagan, and Sonia Sotomayor are all considered clear votes to uphold Roe based on their histories of supporting abortion rights.
Breyer has never voted to defend any abortion restriction and has been the lead author on two majority opinions upholding abortion rights.
Kagan consistently votes in favor of abortion rights as well, and is a vocal advocate for adherence to precedent. She recently referred to Texas’ law as “patently unconstitutional.”
Sotomayor also consistently votes to uphold the right to abortion and criticized her fellow justices for allowing Texas’ restrictive six-week ban to stay in effect in October.
Coale said these three justices may use arguments that focus more on precedent in hopes of winning the support of Roberts and the three new justices.
Clarence Thomas, on the other hand, is considered a certain vote to overturn Roe. He voted for that way in 1992 when he dissented in Casey. Later, in 2000, Thomas wrote, “although a State may permit abortion, nothing in the Constitution dictates that a State must do so.”
Samuel Alito also appears likely to favor overturning Roe. He has voted to uphold every abortion law that came before him on the high court. During his time as a federal appeals court justice, Alito voted to uphold the same restrictions that the Supreme Court later struck down in Casey.
What are the potential outcomes?
Kobylka sees three possibilities:
- The court directly overrules Roe, thus upholding the Mississippi law.
- The court upholds Roe, but finds that the Mississippi law does not unduly burden a woman’s choice and allows it to stand. This option may be the most attractive to the three Trump appointees because it “creates the illusion of legal stability while relaxing the abortion standard and allowing states to regulate more,” Kobylka said.
- The court upholds Roe, and overturns the Mississippi law because it unduly burdens a woman’s right to abortion. This would require that at least one of the three Trump appointees side with Roberts.
