The U.S. Supreme Court on Monday agreed to consider a major curb on nearly 50 years of abortion rights in the United States, saying it will decide whether states can ban abortions before a fetus can survive outside the womb.
Arguments in the case are likely to be heard in the court’s term that starts in October, with the new 6-3 conservative majority possibly ready to significantly limit a woman’s constitutional right to abortion first spelled out in the 1973 Roe v. Wade decision and reaffirmed 19 years later.
The newest abortion dispute involves a law enacted by the southern state of Mississippi that would prohibit abortions after the 15th week of pregnancy, one of numerous statutes approved by conservative-majority state legislatures in recent years targeting the 1973 ruling.
The Mississippi abortion case would be the first heard by new Justice Amy Coney Barrett, an abortion foe appointed to the court last year by then-President Donald Trump. Barrett replaced the late Justice Ruth Bader Ginsburg, who was a staunch abortion rights jurist.
Barrett was one of three conservatives Trump named to the court. The other two, Justices Neil Gorsuch and Brett Kavanaugh, were on the losing side in a 5-4 2020 abortion ruling, voting to allow Louisiana to enforce restrictions on doctors that could have closed two of the state's three abortion clinics.
But the court majority, which included Ginsburg, barred Louisiana from requiring doctors performing abortions to have admitting privileges at nearby hospitals. In both the Louisiana case, and in an earlier, nearly identical case involving a Texas law, Justice Stephen Breyer wrote that the laws put an undue burden on the constitutional right to have an abortion.
The Mississippi law banning abortions after the 15th week of a pregnancy was enacted in 2018 but blocked after a federal court challenge. The state's only abortion clinic remains open, with its owner saying the clinic performs abortions up to 16 weeks.
A key question in the case is about fetal viability, whether a fetus can survive outside the womb at 15 weeks. In lower-court consideration of the case, the Mississippi clinic said viability was impossible at that stage of pregnancy. The 5th U.S. Circuit Court of Appeals said the state "conceded that it had identified no medical evidence that a fetus would be viable at 15 weeks."
The Mississippi law, if approved by the Supreme Court, would allow exceptions to the 15-week ban in cases of medical emergency or severe fetal abnormality. Doctors who violate the ban would face mandatory suspension or revocation of their medical licenses.
The case to be heard by the Supreme Court is separate from disputes over laws enacted by Mississippi and other states that would ban most abortions as early as six weeks — when a fetal heartbeat may be detected — but before some women even realize they are pregnant.
Abortion rights remain one of the most contentious issues in the United States, with sharp divisions among Americans along partisan, ideological and religious lines.
A recent Pew Research Center poll found that a 59% majority of U.S. adults say abortion should be legal in all or most cases, while 39% think abortion should be illegal in all or most cases.
But Democrats and Democratic-leaning independents, by an 80%-to-35% margin respectively, are more likely than Republicans and those who lean Republican to say abortion should be legal in all or most cases.
“Majorities of adults across racial and ethnic groups say abortion should be legal in all or most cases,” Pew said. “Support for legal abortion is greater among those with higher levels of education.”
The researchers said white evangelical Protestants continue to be opposed to abortion in all or most cases. Pew said in contrast, most white Protestants who do not consider themselves to be evangelical (63%) say abortion should be legal in all or most cases.
Religious “nones” — those who are religiously unaffiliated — overwhelmingly support legal abortion, Pew said. Among them, 82% say it should be legal in all or most cases, while just 16% say it should be illegal.