Law & the Courts

Supreme Court Will Hear Major Abortion Case on December 1

The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

The Supreme Court will hear a major abortion case on December 1 that will give the justices an opportunity to reconsider the precedent set by the landmark Roe v. Wade and Planned Parenthood v. Casey decisions, the court announced Monday.

The case involves a Mississippi law passed in 2018 that bans abortions after 15 weeks with limited exceptions. The law was blocked by the 5th U.S. Circuit Court of Appeals as under existing precedent, states may not ban abortions before fetal viability, which is typically around 22 weeks or later.

“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed and re-affirmed) a woman’s right to choose an abortion before viability,” a panel of judges on the 5th US Circuit Court of Appeals wrote in December 2019.

“States may regulate abortion procedures prior to viability so long as they do not ban abortions,” the court wrote, arguing that “the law at issue is a ban.”

The case, Dobbs v. Jackson Women’s Health Organization, asks whether all pre-viability restrictions on abortion are unconstitutional.

Mississippi is asking the justices to review the viability standard, arguing that the rule prevents states from defending maternal health and its interest in protecting life.

“It is well past time for the Court to revisit the wisdom of the viability bright-line rule,” Mississippi attorney general Lynn Fitch wrote in a brief filed with the justices.

The court agreed to hear the case in May after months of deliberation.

Jackson Women’s Health Organization, an abortion clinic in Mississippi, had asked the court not to take the case.

“In an unbroken line of decisions over the last fifty years, this Court has held that the Constitution guarantees each person the right to decide whether to continue a pre-viability pregnancy,” Hillary Schneller, an attorney for the clinic, wrote in a filing.

Schneller claimed that the state’s argument was “based on a misunderstanding of the core principle of” earlier Supreme Court decisions.

“While the State has interests throughout pregnancy, ‘[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion,’” she wrote.

The court is likely to reach a decision by June of 2022.

The announcement comes amid a legal fight between Texas and the Biden administration over the Lone Star state’s new law that prohibits abortion after a fetal heartbeat can be detected.

The Supreme Court issued a 5-4 decision earlier this month rejected a challenge to the Texas law, which allows any individual to sue medical providers who perform an abortion after a fetal heartbeat has been detected. Plaintiffs in litigation cases resulting from the law’s implementation can earn up to $10,000 in damages.

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