The conservative-majority U.S. Supreme Court is set to decide in the coming weeks whether to dramatically curb abortion rights when it rules on a case from Mississippi, potentially paving the way to about half of the 50 U.S. states banning or heavily restricting the procedure.
Here is a summary of what’s at stake and how the court could rule in the decision expected by early July:
The 1973 Roe v. Wade ruling that the court could overturn in the pending case held that the due process clause of the 14th Amendment to the U.S. Constitution provides a fundamental right to privacy that protects a woman’s right to abortion.
The high court reaffirmed abortion rights in the 1992 Planned Parenthood v. Casey decision that said abortion restrictions cannot place an “undue burden” on the right and most recently in 2016, when the court threw out a Texas law that would have imposed difficult-to-meet requirements on clinics and doctors who provide abortions.
The Roe and Casey decisions determined that states cannot ban abortion before a fetus is viable outside the womb, generally viewed by doctors as between 24 and 28 weeks.
The nine justices are weighing whether to revive Mississippi’s ban on abortion starting at 15 weeks of pregnancy, a law blocked by lower courts as clearly in violation of the Roe v. Wade precedent.
Mississippi’s lawyers have urged the court, which has a 6-3 conservative majority, to overturn Roe entirely. In May, a leaked draft opinion by conservative Justice Samuel Alito suggested that there is a majority to take that step. The court said in a statement announcing an investigation into the leak that the draft was not the court’s final word.
Based on December’s oral arguments, it appeared the conservative majority was leaning toward upholding the Mississippi law, which would at a minimum gut the central holding of Roe that said states cannot ban abortion pre-viability.
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The leaked draft opinion indicated the court could overturn Roe v. Wade altogether. In either scenario, states that want to restrict or ban abortion would have much more leeway to do so, although a total reversal of Roe would make it a lot easier for them.
A scenario in which the court strikes down the Mississippi law does not seem a likely possibility, with the three liberal justices lacking any potential allies from among the conservative justices.
It appears unlikely that a compromise that would meaningfully protect abortion rights is in the cards.
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At oral argument, Chief Justice John Roberts seemed interested in a ruling that would uphold the Mississippi law, thereby allowing states to ban abortions before viability, without overruling Roe altogether, but his conservative colleagues did not appear receptive.
Changes in personnel on the Supreme Court, creating the rock-solid conservative majority, have altered the trajectory on abortion rights. For years, the court had a 5-4 conservative majority that included some moderates like Justice Anthony Kennedy and Justice Sandra Day O’Connor who cast votes to uphold the right to abortion.
That all changed with the four-year presidency of Republican Donald Trump, whose three appointees tilted the court further rightward.
Trump’s appointments – Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020 – are all likely to be in the majority if the court overturns Roe.
If Roe were overturned or limited, many women in the United States who want to end a pregnancy could face the choice of having a potentially dangerous illegal abortion, traveling to another state where the procedure remains legal and available or buying abortion pills online. The procedure would remain legal in liberal-leaning states, more than a dozen of which have laws protecting abortion rights.
Mississippi is among 13 states with so-called trigger laws designed to ban abortion if Roe is overturned. In total 26 states would quickly move to curtail abortion access, according to the Guttmacher Institute, an abortion rights research group.
Some legal experts said that a ruling overturning Roe could imperil other freedoms related to marriage, sexuality and family life including birth control and same-sex marriage.
© 2022 Reuters
