Roe v. Wade, the landmark 1973 ruling that established a nationwide right to abortion, faces its greatest challenge in 30 years in a 6-3 Conservative-majority court elected from three appointments to former President Donald Trump.
“There are no half measures here,” said Sherif Girgis, a law professor in Notre Dame who once worked as a trainee lawyer for Justice Samuel Alito.
The case discussed on Wednesday comes from Mississippi, where a 2018 law would prohibit abortions after 15 weeks of gestation, well before viability. The Supreme Court has never allowed states to ban abortions until the point at which a fetus can survive outside the uterus after about 24 weeks.
“It’s the biggest worry I’ve ever had,” said Shannon Brewer, who runs the only abortion clinic in Mississippi, the Jackson Women’s Health Organization.
The clinic offers abortions until week 16 of pregnancy and about 10 percent of abortions occur after week 15, Brewer said.
She also noted that since Texas law went into effect, the clinic has seen a significant increase in patient numbers, operating five days or six days a week instead of two or three.
Lower courts blocked Mississippi law as it has other abortion bans that use traditional enforcement methods by state and local officials.
The Supreme Court had never before agreed to hear an abortion ban case. But after Judge Ruth Bader Ginsburg’s death last year and her replacement by Judge Amy Coney Barrett, the third of Trump’s appointees, the court said it would open the case.
Trump had promised to appoint “pro-life judges” and predicted that they would lead in overturning abortion decisions. Only one judge, Clarence Thomas, has publicly called for Roe to be overridden.
The court could uphold Mississippi law without expressly overriding Roe and Casey, a result that would not satisfy either side.
Proponents of abortion rights say the outcome would be the same as a direct judgment overturning the earlier cases because it would obliterate the rationale that underpins nearly half a century of the Supreme Court.
“A decision to maintain this ban is tantamount to lifting Roe. The ban prohibits abortions about two months before viability, ”said Julie Rikelman, who will represent the clinic.
Anti-abortion opponents, on the other hand, argue that the court essentially invented abortion law in Roe and Casey and should not repeat that mistake in this case.
If the judges are complying with Mississippi law, they must explain why it is, said Thomas Jipping, legal counsel for the Heritage Foundation. You can either override the two big cases, Jipping said, “or you have to come up with some other fabricated rule.”
Conservative commentator Ed Whelan said such an outcome would be a “massive defeat” on par with the 1992 Casey decision, in which a court of eight Republican presidential judges unexpectedly upheld Roe.
This court seems far more conservative than the one Casey ruled, and Florida State University law school scholar Mary Ziegler said the court would “likely override Roe or put us on our way.”
Chief Justice John Roberts might find the step-by-step approach appealing if he can convince the majority of the court to go along with it. Since Roberts became chairman in 2005, the court has moved in smaller steps on some issues, even when it appeared that there was only a binary choice.
It took two cases before the court ripped out the heart of federal electoral law, which contained potentially discriminatory electoral laws in states with a history of discrimination.
In the area of organized labor, the court dealt with a number of cases in which the power of unions in the public service was diminished.
The Supreme Court also heard two rounds of arguments about restrictions on independent spending in the political arena before lifting restrictions on how much money companies and unions can invest in canvassing.
If the court scrutinized public opinion, it would find poll after poll showing support for getting Roe, although some polls also find support for stronger restrictions on abortion.
Mississippi is one of 12 states that act almost immediately if Roe is overturned. These states have passed so-called abortion laws that go into effect and prohibit all or almost all abortions.
Some legal briefs in the case make it clear that the end of Roe is not the ultimate goal of anti-abortionists.
The court should recognize that “unborn children are persons” within the meaning of the 14th Amendment, a conclusion that would force an end to almost all legal abortions, wrote Princeton professor Robert George and scholar John Finnis.
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