Supreme Court Hears Arguments in Case That Could Overturn "Roe v. Wade"

The battle for reproductive freedom continues today. That's because the Supreme Court will hear oral arguments in a case directly challenging Roe v. Wade, also known as Dobbs v. Jackson Women's Health Organization (opens in new tab). This is the first time since Roe became the law of the land nearly 50 years ago that the Supreme Court has ruled on the constitutionality of a ban on pre-viability (aka before the fetus is able to survive outside the womb) abortions.

Reproductive justice advocates were surprised to learn in May that the Supreme Court would take up this case involving a Mississippi law banning abortion after 15 weeks that was passed in 2018; in 2019, Mississippi's anti-abortion law was struck down by a lower court (in a new tab open in new tab) and prevented from going into effect. In response, State Health Officer Thomas Dobbs of the Mississippi Department of Health filed an appeal on behalf of the state asking the court to uphold the ban after 15 weeks and overturn Roe directly. The Court let the case stand for nearly a year before deciding to hear the case.

"While we await the outcome, it is important to pay close attention to what happens in Wednesday's oral arguments and how this will be worded by the state and our opponents," explained Mini Timmaraju, president of NARAL (opens in new tab)." Anti-choice advocates are attempting to use the fact that the Court opened this window to hear the case, and that S.B. 8 (the recent Texas law (opens in new tab) banning abortion after 6 weeks) has long survived, as a further incentive to push for further restrictions on abortion across the country."

The Center for Reproductive Rights, on behalf of Jackson Women's Health Organization (open in new tab), the only remaining licensed abortion clinic in Mississippi, is asking the Supreme Court to decide whether the previability ban on all elective abortions is unconstitutional by Decide whether. Jenny Ma, senior staff attorney at the Center for Reproductive Rights, said the simplest decision, and the option the Center is advocating, is for the Court to recognize Roe as domestic law and reaffirm its decision, as it did in the 1992 case Planned Parenthood v. Casey (open in new tab) to be a national law, he told Marie Claire.

The other is a devastating blow to abortion rights, in which the Court could accept Mississippi's argument and overturn Roe v. Wade, as it did in Planned Parenthood v. Casey. In this scenario, the constitutional right to abortion (open in new tab) would be effectively extinguished in about 26 states (open in new tab), 12 of which have enacted trigger laws (open in new tab) that would take effect if Roe is overturned. The real issue, however, is the details. The Court may neither explicitly uphold Mississippi's ban nor decide to overturn Roe. Instead, it may redefine provisions such as the viability standard (fetal viability typically occurs around 24 weeks of gestation), which Mississippi claims is arbitrary (opens in new tab).

"It's really important to understand that any decision upholding Mississippi's ban is the same as overturning Roe," Marr says.

"It may not be in the text of the decision, but you can't uphold the law without removing the core holding of Roe that an individual has the right to make a decision until viability is reached."

Despite the fact that nearly six in ten Americans (open in new tab) support legal abortion and do not want Roe v. Wade overturned, 2021 is the worst year ever for abortion access (open in new tab). At this critical time, pro-choice advocates are focused on electing pro-choice politicians in the 2022 midterm elections and passing the Women's Health Protection Act (WHPA) (opens in new tab). The bill would expand access to abortion nationwide by codifying Roe and making it more difficult for states to pass medically unnecessary restrictions such as waiting periods and telemedicine bans (opens in new tab). The bill was passed by the House of Representatives and is currently being considered by the Senate.

As oral arguments begin, the Supreme Court's 6-3 conservative majority is a major concern for abortion rights advocates. Three of the justices (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) were appointed by former President Donald Trump, who previously promised (open in new tab) to appoint Supreme Court justices who would overturn Roe v. Wade. These justices, along with Clarence Thomas and Samuel Alito, recently voted not to block Texas' six-week abortion ban (opens in new tab) from going into effect on September 1. This morning, hundreds of people are rallying in front of the Supreme Court in hopes that their reproductive freedom will be protected.

"I think in a way [the right to abortion] was expected because our generation has never experienced anything like this," Ma says.

"It's just devastating for pregnant people and women to see these claims being made."

The court is expected to issue its decision in Dobbs v. Jackson Women's Health Organization in the summer of 2022, but technically it could be issued anytime from Jan. You can hear oral arguments beginning at 10:00 a.m. ET (opens in a new tab).

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