By Lisa Soronen
The U.S. Supreme Court will hear a case challenging whether a woman has a constitutional right to an abortion before a fetus becomes viable. The court’s prior rulings in Roe v. Wade and Planned Parenthood v. Casey have affirmed that right.
Mississippi prohibits abortions after 15 weeks gestation except in a medical emergency or in the case of a severe fetal abnormality. The justices have agreed to consider a 5th U.S. Circuit Court of Appeals ruling upholding a lower court decision to invalidate Mississippi’s law. The case is Dobbs v. Jackson Women’s Health Organization.
Mississippi concedes that a fetus is not viable at 15 weeks. In concluding the law is unconstitutional, the 5th Circuit stated: "In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban."
In its petition requesting the Supreme Court hear the case, Mississippi asks the justices to reconsider court precedents because they don’t consider the state’s interest “in protecting the infant’s life” before viability. According to Mississippi, “The viability rule was created outside the ordinary crucible of litigation, failed to take account of the state’s accepted interest in maternal health and fetal pain, is increasingly out of step with other areas of the law, rejects science and common sense, and is shaky precedent at best.”
The 5th Circuit pointed out the 9th U.S. Circuit Court of Appeals invalidated a ban at 20 weeks; the 8th Circuit invalidated bans at six and 12 weeks; and the 10th Circuit invalidated a ban at 22 weeks.
An amicus brief filed by a number of states notes that multiple states prohibit abortions after 20 or 22 weeks. According to these states, the ruling in this case “casts doubt on the lawfulness of any restriction on the right to abortion prior to 23 weeks.”
The only abortion clinic in Mississippi does not perform abortions after 16 weeks. One of the clinic’s doctors testified that at least one woman a week seeks an abortion after 14 weeks and six days.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.