In an action shedding only limited light on where it now stands on abortion, the…
Supreme Court to hear Mississippi abortion case, possible landmark ruling
In agreeing to rule on the constitutionality of a Mississippi law that bans nearly all abortions after the 15th week of pregnancy, the Supreme Court has set the stage for what may be a landmark ruling on abortion.
The Supreme Court announced Monday that it will hear oral arguments in the case in its term that begins in October. A decision is likely a year from now.
The court did not comment in announcing it would consider the case, but a minimum of four justices must vote to consider any case for the court to grant review. The members of the court commonly taken to be pro-life are Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Mississippi’s two Catholic dioceses, Biloxi and Jackson, joined the state in asking the Supreme Court to consider the case.
Most abortions are performed before 15 weeks. But in prescribing a pre-viability cutoff point beyond which abortions are not permitted except in emergency situations, the Mississippi law makes a significant dent in the policy of previous court rulings that allow virtually unlimited access to abortion all through pregnancy. And a Supreme Court decision upholding the law could pave the way for future rulings involving other laws that further curb abortion.
In fact, petitions seeking review of cases that involve such laws in Indiana and Arkansas are already awaiting before the court, and more such cases are on their way from other states. What the Supreme Court does in the Mississippi case will undoubtedly determine how it handles these other appeals.
Among the questions raised by the court’s action in agreeing to hear the case is whether the Biden administration, reflecting the president’s frequently declared support for abortion, will intervene in opposition to the Mississippi law.
Whether it does or not, the Supreme Court’s willingness to consider the case is likely to spur renewed talk by abortion supporters in Congress concerning so-called court-packing — adding additional justices beyond the present nine members with the aim of guaranteeing results they like.
At the center of the case is a state law called the Gestational Age Act, which was enacted in 2018. The 5th Circuit U.S. Court of Appeals in December 2019 upheld a district court ruling that overturned the law in light of the Supreme Court’s previous decisions on abortion.
The pro-abortion side of the abortion controversy has been in the ascendancy on the Supreme Court ever since the court first legalized the practice in the Roe v. Wade decision in January 1973. Now, however, with the recent addition of Justices Gorsuch, Kavanaugh and Barrett, the pro-life side is thought to have a 6-3 majority.
The case to be considered by the court is Dobbs v. Jackson Women’s Health Organization. Dr. Thomas E. Dobbs is the state’s chief medical officer, and the Jackson Women’s Health Organization is Mississippi’s only abortion facility.
The law allows abortion after 15 weeks in pregnancy in case of medical emergency or severe fetal abnormality but otherwise forbids abortions from that point on. In its petition to the Supreme Court, the state said the 15th week cutoff protects both the mother and the child.
“The risk of a mother’s death from abortion at 16 to 20 weeks’ gestation is 35 times more likely than at eight weeks, and the relative risk of mortality increases by 38% for each additional week at higher gestations,” the state’s petition to the Supreme Court said.
As for the child, the petition called it “undisputed in the medical literature that a human fetus develops neural circuitry capable of detecting and responding to pain” between the 10th and 12th weeks. And at 14 to 20 weeks, it added, the fetus becomes consciously aware of pain.
Given these facts, the state said, the court’s suggestion in Roe v. Wade that states cannot prohibit pre-viability abortions is in increasing conflict with its later statements the states have “legitimate interests” in the life of the fetus from the start of pregnancy, and has become increasingly untenable.
“This court should find that the state’s interest in protecting unborn children who have the capacity to feel pain is sufficiently compelling to support a limited prohibition on abortion,” the petition for review declared.
Predictably, pro-life and pro-choice groups took radically different views of the Supreme Court’s action.
“Alarm bells are ringing loudly about the threat to reproductive rights. … The consequences of a Roe reversal would be devastating. Over 20 states would prohibit abortion entirely,” said Nancy Northrup, president and CEO of the Center for Reproductive Rights, which joined in bringing the lawsuit against the Mississippi law.
But Marjorie Dannenfelser, president of the pro-life Susan B. Anthony List, called the case “a landmark opportunity for the Supreme Court to recognize the right of states to protect unborn children.”
“Across the nation, state lawmakers acting on the will of the people have introduced 536 pro-life bills aimed at humanizing our laws and challenging the radical status quo imposed by Roe. It is time for the Supreme Court to catch up to scientific reality and the resulting consensus of the American people,” Dannenfelser said.
Russell Shaw is a contributing editor for Our Sunday Visitor.