On Thursday, the state of Mississippi filed a brief asking the Supreme Court to overrule the landmark 1973 Roe v. Wade case, which made abortion a constitutional right and has been the central point in the fight over abortion for decades. Mississippi explained its position in the crucial abortion case — called Dobbs v. Jackon Women’s Health Organization — which the Court will hear later this year.
The case itself poses the crucial question of whether viability (the time when a baby can live outside the womb) should be the standard on which government can intervene and set limits to abortions. This would be the first major abortion case heard by the Court since the appointment of Amy Coney Barrett in 2020, after the death of liberal Justice Ruth Bader Ginsburg.
While the question surrounding viability as a legal standard for limiting abortion is controversial by itself, the latest brief by Mississippi will certainly raise the stakes of the case, directly forcing the Court to take a definitive answer over the issue of abortion — whether the Court will do that is still uncertain.
Currently, abortion is considered to be a constitutional right based on an interpretation the Court made of the 14th Amendment in Roe, saying that women have a “right to privacy” that gave them an inherent right to abortion. However, the state has a compelling interest to protect human life, and it can regulate abortions as long as it does not impose an “undue burden”, according to the 1992 case Planned Parenthood v. Casey.
Mississippi has filed a sterling rebuke of the Court’s jurisprudence on the issue of abortion, with the state claiming that both Roe and Casey are decisions that are “egregiously wrong”, “hopelessly unworkable”, and that the principle of a right to abortion has no basis in “constitutional text, history or tradition.” The state also argues that both decisions have caused “severe damages” as it is against the principle of “democratic self-governance” and it has not respected the principle that the Court needs to act based on”neutral principles of law.”
The scathing attack on the Court’s jurisprudence ends with a call from the state of Mississippi to uphold the state’s law that is being challenged as constitutional, overrule both Roe and Casey, and reverse the decision by a district court that ruled the Mississippi statute as unconstitutional.
By submitting this brief, the state of Mississippi has changed the scope of the case itself, changing it from one debating the technical aspects of when should the government rightfully limit abortion to one contesting the case that gives abortion the status of a constitutional right.
Abortion, the Court, and the public
The Court has managed to end its 2021 term without rumbling many feathers, mainly by delivering opinions with vast support and avoiding making any longstanding controversial decisions. However, this streak will most likely end once they decide this case as the case has to not only consider whether Mississippi’s statute is constitutional or not but also decide on the issue of viability, and decide if they will uphold or reject the court’s current jurisprudence on abortion.
All eyes will be on the Supreme Court when it decides this case next year, while Democrats and pro-abortion activists will be waiting with dread the decision of the Court, Republicans and pro-life supporters will be hoping that the six ostensibly conservative judges will set a new precedent that restricts abortion or even outright overturn one of the (in)famous Roe v Wade.
Abortion is one of the most divisive and heavily contested issues in America, with a Gallup poll showing that 49% of Americans consider themselves to be “pro-choice” while 47% of those surveyed see themselves as “pro-life”. With the pro-life camp making significant inroads with the American public over the last 30 years, only 33% of Americans cast themselves as pro-life when Gallup began asking this question in 1996.
Chief Justice Roberts will be in a very tough spot once the bench decides the case. If he pushes his peers to make a crucial decision against abortion, he would be heavily criticized by pro-abortion organizations and Democrats, giving ammunition to those who are calling for packing the court with more liberal judges.
However, if he manages to convince his fellow judges to make a narrow decision, kicking the can for later, pro-life activists will also be upset that a supposedly conservative majority does not make decisions that have been pushed by conservatives for decades.
In 2021, the Court managed to survive by issuing rulings that are usually limited in scope or that have vast support in both the liberal and conservative sides of the bench. However, the honeymoon for justices like Amy Coney Barrett will be over and the Court will have to make a decision on abortion that will be despised by half a country and lauded by the other half. In other words, the Court will have to do its job.