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The highest court in the land has decided to evaluate the constitutionality of one anti-abortion law in Mississippi, the biggest case on the issue since the confirmation of Amy Coney Barrett. Mississippi’s abortion case (called Dobbs v. Jackson Women’s Health Organization) would illustrate how the newly found 6-3 conservative majority in the court will deal with one of the most divisive issues in American politics, with pro-life activists hoping (and pro-choice dreading) the decision would pave the way for an ultimate overruling of Roe V. Wade.
Although the court had previously decided to hear a minor case on abortion earlier this year, this is the first time this court will hear a case that is directly related to state limitations on the access of abortion. Any decision could tip the balance for either side of the argument in a decisive way for years to come, especially as it would give clear evidence on how would the conservative majority in the court rule in similar cases across the country.
If the court decides in favor of the Mississippi law, it would incentivize more states and pro-life advocates for pushing for similar laws across the nation, with the objective of having some of them upheld at the Federal level. If it decides against it, it would present a hard blow to pro-life supporters who hoped a more conservative court would rule against abortion.
Both pro-life and pro-choice organizations have already commented on the decision of the court to hear the case, with the formers expectedly calling for the Court to revise the decisions that have set the legal framework for abortion in the US while the latter also predictively showing despair for the prospects of a conservative court hearing the case.
The president of the prominent pro-life movement Live Action, Lila Rose, posted a thread on Twitter calling the court to “revisit Roe V. Wade and Planned Parenthood v. Casey” and finally “acknowledge what science has long revealed: that a unique and individual human life begins at the moment of fertilization” and that “the Supreme Court should grant equal protection under the law to all humans”.
Pro-abortion organizations have furiously condemned the bill and have raised alarms on the effects such a bill could have on abortion in the country. With a tweet posted by the pro-choice association NARAL calling the case “a direct threat to Roe V. Wade” and adding that “it does not get scarier than this”.
What does the case involve?
The law in question was passed by the state’s legislature in 2018 and it prohibits most abortions for pregnancies that are 15 weeks or older, a legislation that was then sued by the state’s only abortion clinic and that was eventually blocked by a lower federal court, a decision that was then ratified by the U.S 5th Circuit Court of Appeals.
The way the federal court system in the US works mean that the parties can appeal their way up to the Supreme Court, who has the ultimate voice over the issue. If the Court decides not to hear the case, however, the ruling of the lower court stands. Since the Supreme Court is a small body with overreaching jurisdiction, it does not often grant these petitions (called a writ of certiorari) with the Court hearing less than 1% of the appeals submitted.
The center of the legal arguments would be centered around the issue of viability, which is broadly defined as the capability of the fetus to live outside of the womb of the mother without any type of artificial help. With the clinic in question arguing that viability only comes after 23-24 weeks during the pregnancy and that the law would represent an unconstitutional ban on pre-viability abortions.
The state of Mississippi dismissed those concerns by arguing the law does not create a “substantial obstacle” for women looking for an abortion since it allows them to get one before the 15-week limit. The lower courts ended up siding against the Mississippi law by arguing that the legislation in question is not only a limitation on the availability of pre-viability abortions but an actual ban on them.
The state of Mississippi filed their writ of certiorari last year, asking for the court to decide on a couple of questions regarding the unconstitutionality of banning pre-viability abortions. The Court, after postponing the decision 12 times, decided to rule over the question if all pre-viability abortion ban are unconstitutional or not.
In other words, the court will decide if viability should be used as a benchmark to determine the legality of abortions throughout the country.
How will the Court rule?
This will be the first test of fire for the newest member of the Court, Justice Amy Coney Barrett, who was nominated and confirmed in a highly contentious process last year after the death of progressive Justice Ruth Bader Ginsburg. Until now, the justice has been able to evade the thorny issue of abortion, but with the court deciding to finally hear Missisppi’s abortion case, those days are over.
The last time the court decided to rule on a major abortion case was in 2020 when a 5-4 vote decided to block a bill drafted by Louisiana that would restrict abortions in the state. In that case, the key vote against the Lousiana bill was that of Chief Justice John Roberts, who sided with the liberal side of the court as he said that the case in question was similar to a Texas law that was also struck down in 2016.
However, today’s court is different from the one that decided the Louisiana case. With 6 of the 9 justices sitting int he bench being nominated by a Republican president, the conservatives could afford a negative vote by Roberts and still get a decision that would overturn the lower court’s decision.
Based on their years of previous rulings and opinions, it would not be unexpected that Justices Sotomayor, Kagan and Breyer decide against Mississippi’s law, while Justices Alito and Thomas voting for it to be upheld. If we follow the closest precedent the court gives us on this issue, the 2020 ruling against Louisiana, the it could also be possible that Justices Gorsuch and Kavanaugh also decide in favor of Mississippi.
All eyes then would be on Justices Barrett and Roberts as they could be instrumental in deciding not only the ultimate fate of the bill but also the scope of the decision they reach, as it will be the language hey use on their opinions what would determine if the decision the court reaches on the Mississippi case is either expansive and groundbreaking or limited in scope.
Abortion is one of the most divisive issues facing America, whatever the court decides on Mississippi’s abortion case would finally give us a proper glimpse on the how will the new court decide on the issue as both pro-life and pro-abortion activists hold their breaths.
Daniel is a Political Science and Economics student from the University of South Florida. He worked as a congressional intern to Rep. Gus Bilirakis (FL-12) from January to May 2020. He also is the head of international analysis at Politiks // Daniel es un estudiante de Cs Políticas y Economía en la Universidad del Sur de la Florida. Trabajo como pasante legislativo para el Representate Gus Bilirakis (FL-12) desde enero hasta mayo del 2020. Daniel también es el jefe de análisis internacional de Politiks.