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What the Supreme Court's examination of Mississippi's abortion case could mean

Roe Vs. Wade
Posted at 12:21 PM, May 21, 2021

CHICAGO — Nearly 50 years after the landmark Roe vs. Wade decision, the U.S. Supreme Court announced this week that it would look at a major abortion case from Mississippi.

After losing an appeal in the lower courts, the state of Mississippi is looking to the Supreme Court to allow a ban on most abortions beginning at the 15th week of pregnancy.

“Supreme Court made clear in Roe v. Wade that the state could not flat out prohibit abortion before the point of viability. That is the point at which the fetus could survive outside the woman,” said University of Chicago law professor Geoffrey Stone, an expert on abortion law and women’s rights.

Among Stone's many books is Sex and the Constitution: Sex, Religion and Law from America’s Origins to the Twenty-First Century.

“The state of Mississippi has enacted a statute that prohibits abortions after 15 weeks, which is roughly half of the normal point for viability,” said Stone.

According to the Centers for Disease Control and Prevention (CDC), 90 percent of abortions occur in the first 13 weeks of pregnancy so the impact could be limited. However, Katie Watson, an associate professor of medical social sciences and obstetrics and gynecology at Northwestern University, says it still has the potential to gut Roe vs. Wade.

“It's hard to imagine affirming Mississippi's law without just opening that Pandora's box,” said Watson.

It could also open the flood gates of state legislation, placing new restrictions on abortions across the country.

There has already been a surge in proposed state laws. On Wednesday, Texas Gov. Greg Abbott signed into law a ban on abortions as early as six weeks.

According to the Guttmacher Institute, as of February, 384 anti-abortion provisions have been introduced in 43 states.

Historically, the U.S. Supreme Court has shied away from hearing abortion cases like Mississippi’s where the lower courts were all in agreement.

“Typically, when the court does reverse itself, here's what's different. There's been a change in culture or science, and typically, it gives a minoritized group or a persecuted group more rights, not less," Watson said.

Watson contends that has not happened.

Back in 1992, a conservative majority Supreme Court defied expectation to overturn Roe vs. Wade and affirmed the viability standard but did rule that states could regulate abortions to protect the life of the mother and fetus.

“There is a clear rationale, and the rationale is this: that is the point at which a fetus could potentially not, 100 percent chance, survive outside a woman's body,” said Watson.

So, why is the high court taking up the issue now?

“In the years since 1992, the Court has become obviously a good deal more conservative,” explained Stone.

“We have jurors who really want to stop women from having abortions. That's the difference,” said Watson. “We have jurors who feel it is within their authority to impose that or to open a system that would allow states to impose that.”

Stone says given the makeup and the willingness to even hear the case, it’s likely the conservative majority will rule in favor of the Mississippi ban.

“At least five of the justices have already indicated to one another that, ‘Let's uphold this law.' They might even go beyond that, by the way,” Stone said. “They might read an opinion that goes beyond upholding the law, overruling Roe, for example.”

Oral arguments are expected to begin in the fall, with a decision coming likely by the spring of 2022.