The Supreme Court Monday agreed to take up the case of a Mississippi law banning abortions after 15 weeks of pregnancy, potentially paving the way for the majority-conservative court to limit the rights outlined in the landmark case, Roe v. Wade.
“Mississippi’s 15-week abortion ban, which then-Gov. Phil Bryant, a Republican, signed into law in 2018, made exceptions only for medical emergencies or cases in which there is a ‘severe fetal abnormality,’ but not for instances of rape or incest. A federal judge in Mississippi struck down the law in November 2018, and the 5th US Circuit Court of Appeals upheld that ruling in December 2019,” CNN reported Monday, as the Supreme Court granted the appeal.
The 5th Circuit struck down the law using Roe v. Wade as an excuse, claiming that the Supreme Court has “established (and affirmed and re-affirmed) a woman’s right to choose an abortion before viability,” and that states may only regulate and restrict abortion “prior to viability so long as they do not impose an undue burden on the woman’s right…[T]hey may not ban abortions.”
Other states have enacted similar bans, most of which were blocked by courts. Mississippi’s is a largely straightforward ban, giving the Court the opportunity to look at how Roe v. Wade, which legalizes abortion prior to fetal viability — a standard which now hovers somewhere between 22 and 24 weeks of pregnancy.
The appellants presented three questions: whether “all pre-viability prohibitions on elective abortions are unconstitutional,” which standard these types of laws should be judged under by the courts, and whether abortion providers have the standing to challenge a law restricting access to abortion after a certain period of time if they, themselves, are not the target of the abortion restriction.
The Supreme Court, though, will only consider one of the three issues on appeal in the case: whether all pre-viability prohibitions are, by definition, unconstitutional without regard to what they ban and whether they present only limited restrictions on what the Supreme Court has defined to be a “right.”
Mississippi’s Attorney General argued in the state’s appeal that the case is “ideal” for a clear and concise ruling on the topic of what constitutes “viability” for purposes of restricting abortion.
“This case remains an ideal vehicle to promptly resolve both that question and the first question presented — the contradictions in this Court’s decisions overuse of ‘viability’ as a bright line for measuring pro-life legislation,” Mississippi Attorney General Lynn Fitch wrote.
The Supreme Court, which, until recently, was reluctant to weigh in on the abortion debate, will actually take up two cases dealing with the subject next term. In addition to the case concerning Mississippi’s 15-week abortion ban, the Court will consider a case from Kentucky over whether a separate party — in Kentucky’s case, a Republican Attorney General — can step in to defend a partial-birth abortion ban when a Democrat-run administration refuses.
Last year, the Supreme Court also “granted the Trump administration’s request to reinstate long-standing restrictions for patients seeking to obtain a drug used for abortions early in pregnancy — with the three liberals dissenting in a potential preview of a new chapter in the court’s rulings on the procedure,” per CNN. That case concerned so-called “one-click abortion” smartphone apps that allowed potential patients to obtain the drugs necessary for a chemical abortion through a telehealth portal without an in-person visit with a medical professional.
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