May 17, 2021- 12:11 p.m.
WASHINGTON – The Supreme Court agreed Mondayto hear a challenge to Mississippi’s ban on most abortions after 15 weeks of pregnancy, giving the court’s new conservative majority the chance to consider a direct test of the landmarkRoe v. Wade decision.
By taking the case the court is wading into one of the nation’s most polarizing issues after a term in which the justices appeared to shy from such controversies. A decision is not expected until next year, potentially landing months ahead of the 2022 midterm election.
The court’s 1973 decision in Roe found that women have a constitutional right to abortion and a subsequent decision from the high court in 1992 reaffirmed that right up to the point that a fetus is viable outside the womb, often set at around 24 weeks. But several conservative states, including Mississippi, have approved bans on abortion before that stage of pregnancy.
Now the court will decide whether those bans are constitutional – an unexpected move that drew sharp reactions from both sides of the abortion debate.
“Alarm bells are ringing loudly about the threat to reproductive rights,” said Nancy Northup, president of the Center for Reproductive Rights, which is representing the abortion clinic. “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.”
Despite the addition in October of Associate Justice Amy Coney Barrett, which gives conservatives a 6-3 edge on the court, the justices had been considering for months whether to take the case, potentially suggesting deep divisions on the nine-member bench. In its order Monday, the court limited the case to a single question: Whether pre-viability bans on abortion such as Mississippi’s are constitutional.
“This is a landmark opportunity for the Supreme Court to recognize the right of states to protect unborn children,” said Marjorie Dannenfelser, president of the anti-abortion organization Susan B. Anthony List. “It is time for the Supreme Court to catch up to scientific reality and the resulting consensus of the American people as expressed in elections and policy.”
Both sides noted the case will be heard at a time when states are ramping up the number and scope of abortion restrictions. Fifteen other states besides Mississippi have tried to ban abortions before viability but have been blocked in court, according to the Guttmacher Institute, which conducts research on abortion and reproductive health.
Mississippi, one of five states with only one abortion clinic left operating, argued that its ban – with exceptions for medical emergencies or fetal abnormalities – would not violate the broader right to abortion protected by Roe. Rather, the state justified its ban by asserting a fetus can feel pain after 15 weeks and that an abortion at that stage carries increased medical risks.
Opponents said that pregnancies at 15 weeks are not viable, so abortions at that stage are permitted by court precedent.
Both sides had been closely watching whether the court would take the case, attempting to parse meaning from the longer-than-usual delay. Some had speculated the court was eager to avoid taking up such a controversial case so soon after former President Donald Trump named three new justices to the bench.
Despite optimism from anti-abortion groups about the court’s more conservative posture, the justices have stymied abortion opponents twice in the past four years. In June, it struck down a Louisiana law requiring doctors who perform abortions to have admitting privileges at nearby hospitals. Chief Justice John Roberts cast the deciding vote.
In 2016, the court reached a similar conclusion in a Texas case, with Associate Justice Anthony Kennedy joining the court’s four liberal justices. Kennedy later retired and was succeeded by Associate Justice Brett Kavanaugh. Now Barrett has succeeded the late Associate Justice Ruth Bader Ginsburg, leader of the liberal bloc.
In the past several months the court has sought to disentangle itself from several controversial issues left over from the Trump administration, including on questions about the 2020 election, immigration and other abortion issues. President Joe Biden’s administration earlier this year requested the court dismiss a series of cases involving Trump’s effort to cut federal funding for medical centers that refer patients for aborti
