21 May 2021 First Challenge to Roe v. Wade Hits 6-3 Conservative Majority Supreme Court

The U.S. Supreme Court announced May 17 that it will hear the case challenging a Mississippi abortion law that, if upheld, would effectively overturn Roe v. Wade.

The Mississippi law, which was overruled by lower federal courts based on Supreme Court precedent, would ban abortions in the state after 15 weeks, well before the 24 to 28 weeks medical professionals say a fetus can survive outside the womb, The New York Times reports. The new law includes narrow exceptions for medical emergencies—or “severe fetal abnormality,” none for rape or incest. Jackson Women’s Health Organization, a state-licensed abortion provider, sued immediately, and two lower courts have ruled the law unconstitutional.

With the U.S. Supreme Court’s decision to hear the case, Dobbs v. Jackson Women’s Health Organization, No. 19-1392—reportedly “after considering it more than a dozen times at the justices’ private conferences,” —it becomes the first of a barrage of state laws designed to challenge Roe v. Wade before the court’s new 6-3 conservative majority to hit its mark.

“Alarm bells are ringing loudly about the threat to reproductive rights,” Nancy Northup, the president of the Center for Reproductive Rights, said in statement cited by The New York Times. “The Supreme Court just agreed to review an abortion ban that unquestionably violates nearly 50 years of Supreme Court precedent and is a test case to overturn Roe v. Wade.”

As we wrote this spring, the appointment of three conservative justices to the U.S. Supreme Court during Donald Trump’s one-term administration shifted the Court’s ideological balance, creating a 6-3 conservative majority and emboldening right-wing lawmakers and anti-choice activists to challenge Roe. As of our March 2021 report, 60 state bills restricting abortion had passed and were awaiting legal challenges.

Conservative Attack on Roe v. Wade

The Republican-controlled Mississippi legislature passed, and its Republican governor signed the Gestational Age Act into law in 2018. In his decision blocking the law from taking effect, Judge Carlton W. Reeves of the Mississippi Federal Southern District Court wrote, “The state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade. This court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.”

The Mississippi abortion ban that will be heard by the Court is only the tip of the iceberg. As I was preparing to publish this article, Republican Texas Governor Greg Abbott signed into law a so-called “fetal heartbeat bill,” banning abortion in the state once a fetal heartbeat can be detected—long before many women even realize they are pregnant. The bill, which takes effect in September 2021, makes no exceptions for rape or incest but contains a particularly onerous provision allowing private citizens—even if they don’t live in the state of Texas—to sue anyone or any organization they believe may have helped a pregnant woman obtain an abortion. “Reproductive rights advocates warn it can be used to target abortion providers and abortion-rights activists,” NPR reports.

Republican Lawmakers Line Up State Abortion Bans for Supreme Court Challenge

The Texas legislature has become known for testing new and different types of restrictive abortion laws. Previously the state banned abortion after 20 weeks, but during the pandemic it banned nearly all abortions, disingenuously justifying the move as a way of preserving medical resources during the emergency.

Earlier we reported on a fetal heartbeat bill enacted by South Carolina in February 2021 that would allow federal prosecution of physicians who provide an abortion. The bill also requires women to undergo an invasive, vaginal ultrasound and requires physicians to report cases of rape or incest to law enforcement. Lawmakers positioned the bill as “moderate” because, while it is virtually a total abortion ban, it does include exceptions for pregnancies caused by rape or incest.

We also wrote about Arkansas, where in March 2021, state lawmakers and a Republican governor enacted an absolute ban on abortions for any reason—including rape or incest—except to save the life of the mother. Lawmakers passed the law with the express purpose of challenging Roe v. Wade, joining 14 other states that have passed similar bans in 2021.

The effort is almost redundant. Two years ago, Arkansas enacted a total abortion ban in the event Roe v. Wade were overturned, one of 10 states with such so-called “trigger laws,” according to The New York Times. In 2019, Arkansas lawmakers passed a bill that would ban abortions in the state after 18 weeks; that law remains tied up with legal challenges.

Mississippi Abortion Ban Hinges on Fetal Viability

While the abortion bans differ from state to state in the details, what many have in common is a denial of the “viability” principle established by Roe that a woman has a right to choose an abortion up until the time when the fetus she is carrying could survive outside of the womb.

That is exactly what the Supreme Court, in its statement accepting the Mississippi case, has said it wants to examine. “When it agreed to review the case, the Supreme Court said it would address a single question: ‘whether all pre-viability prohibitions on elective abortions are unconstitutional,” The Wall Street Journal reports. In other words, with a single ruling, anticipated in spring or early summer 2022, the Court could either render all state laws that ban abortions prior to fetal viability unconstitutional… or uphold all of them.

While the Court’s newly conservative majority, packed with appointees President Trump chose for their purported willingness to overturn Roe v. Wade, strikes despair in the heart of defenders of reproductive rights, veteran Court watchers will tell you nothing is certain. Supreme Court justices, appointed for life, often vote differently than the presidents who nominated them expected them to.

Chief Justice John Roberts offers such one example of judicial independence. Although he was appointed in 2005 by Republican President George W. Bush, Roberts turned out to be a staunch defender of Supreme Court neutrality as the swing vote in a 4-4 liberal-conservative split. In 2019 he voted with the majority in a 5-4 ruling preventing the U.S. Department of Homeland Security from ending DACA, the Deferred Action for Childhood Arrivals program. In June 2020, joined by Trump-nominated Justice Neil Gorsuch—another surprise—Roberts voted with the 6-3 majority in ruling that the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination based on sex, as reported by NPR. 

And also in June 2020, Roberts joined the then 4-member liberal to strike down a Louisiana physician hospital residency law that would have effectively shut down every abortion provider in the state except one, out of respect for Court precedent, he said.

Those Roberts swing votes were made on a much different Court. With the appointment of Trump nominee Amy Coney Barrett just days before the 2020 presidential election, the balance on the Court shifted to the right, and Roberts is now one of a 6-justice conservative majority. His one swing vote will no longer be enough to preserve precedent, should he be so inclined.

‘Fortress of Public Opinion’ Impacts U.S. Supreme Court Decisions

But the battle is not over yet. The American political and social landscape is in a state of change as our country struggles to recover and recoup from a global pandemic, an economic catastrophe, and ongoing threats to our democratic form of government.

As David Drehle wrote this week in an opinion piece for The Washington Post, Supreme Court justices do not operate in a vacuum. Jurist Charles Evans Hughes wrote in 1928 about the “fortress in public opinion” that gives justices cover for their opinions. Making his own point, following the landslide re-election of President Franklin D. Roosevelt, in 1937 the Court majority under Chief Justice Hughes flipped from opposing Roosevelt’s New Deal to supporting it.

But the Supreme Court justices today enjoy no such public mandate, Drehle continues: “…no landslide enabled President Donald Trump to shift the balance of the court by appointing three robust conservatives.” Rather, Trump lost the popular vote to Hillary Clinton in 2016. “The Senate Republicans who confirmed those justices represented fewer Americans than did Democrats who were opposed,” Drehle writes.

Indeed, President Joe Biden has faced pressure from liberal activists to expand the size of the Supreme Court as a defense against the conservative “court packing” of the past several years. So far, he has resisted, instead appointing a commission, balanced with conservative and liberal voices, to study the matter. Democratic lawmakers have advanced a proposal to expand the Court from nine to 13 justices, corresponding to the 13 federal judicial districts.

Challenges such as the Mississippi abortion law, which threaten women’s reproductive rights and personal autonomy, as well as the fight over how to address the country’s epidemic of gun violence or the argument over immigration policy, all work to inflame public opinion. The Court is not expected to begin hearing the Mississippi case until fall, with no decision expected until mid-2022. Lots can happen, and no doubt will, between now and then. If anything, the rate at which public opinion changes is accelerating.

As Drehle writes, “Public opinion on abortion isn’t a fortress—it’s a battlefield.” We may feel helpless to do anything about the political forces that engineered the Supreme Court’s conservative turn. But all of us can play a role in constructing a “fortress of public opinion” that will cause justices—even those appointed under the flag of far-right politics—to think hard before taking the Court on a path that conflicts with the beliefs and democratic ideals of a majority of Americans.