The Supreme Court Just Took a Case That Could End Roe v. Wade

The Supreme Court hasn’t heard a case that threatens Roe this much since 1992.
May 17, 2021, 2:08pm
U.S. President Donald Trump, left, and Amy Coney Barrett, associate justice of the U.S. Supreme Court, stand on a balcony during a ceremony on the South Lawn of the White House in Washington, D.C., U.S., on Monday, Oct. 26, 2020.
U.S. President Donald Trump, left, and Amy Coney Barrett, associate justice of the U.S. Supreme Court, stand on a balcony during a ceremony on the South Lawn of the White House in Washington, D.C., U.S., on Monday, Oct. 26, 2020. (Ken Cedeno/CNP/Bloomberg via Getty Images)

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The Supreme Court will hear arguments in a case that challenges the heart of Roe v. Wade and might just spell the end of legalized abortion in the U.S. 

The justices announced Monday that they would take Dobbs v. Jackson Women’s Health Organization, a case over a 2018 Mississippi law that banned abortions after just 15 weeks of pregnancy, with no exceptions for rape or incest. The law was almost immediately halted by a legal challenge; under Roe—the landmark case that legalized abortion nationwide nearly five decades ago—states can’t ban abortion before the fetus would be viable to live outside the uterus, which typically occurs at around 24 weeks of pregnancy.

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“There’s no path to upholding a ban like this that doesn’t contradict Roe v. Wade’s core holding,” Hillary Schneller, senior staff attorney for the Center for Reproductive Rights, which is representing Jackson Women’s Health Organization, told VICE News last year.

The fact that the Supreme Court agreed to take the case anyway is a vivid sign that at least four of the nine justices—the minimum number needed to agree to hear a case—want to revisit Roe. In the order announcing their decision, the justices explicitly said they would be examining whether states should be allowed to ban abortion prior to fetal viability, meaning that the justices are weighing whether to strike Roe’s key protection. 

With the Supreme Court’s roomy new 6-3 conservative majority, it was only a matter of time before the justices agreed to take on an abortion case that challenged Roe. President Donald Trump successfully appointed three conservatives to the bench; Amy Coney Barrett, his latest pick, has repeatedly indicated that she personally opposes abortion. And this particular case has long languished on the back burner: The justices had reviewed whether to take up Dobbs more than a dozen times prior to Monday’s announcement.

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Still, the Supreme Court hasn’t heard a case that threatens Roe this much since 1992, when it ruled to preserve abortion access in Planned Parenthood v. Casey, according to Mary Ziegler, a professor at Florida State University College of Law who studies the legal history of reproduction.

“There’s no way to overstate this—not just that they just agreed to take the case but that they agreed to take the most explosive question presented,” Ziegler said. “We don’t know if there’s five votes, but we have to believe there are.”

When it comes to Roe’s demise, Ziegler said, “It really is to me, now, a question of when, not if.”

“There’s no way to overstate this—not just that they just agreed to take the case but that they agreed to take the most explosive question presented.”

In the 1992 case, the Supreme Court ruled in a 5-4 decision to uphold several Pennsylvania abortion restrictions as constitutional but to strike down a regulation mandating that a married woman tell her husband about her decision to get an abortion. The case ultimately reaffirmed Roe but also created a new legal standard for courts to evaluate states’ abortion restrictions. Abortion rights supporters and abortion opponents have wrestled over the boundaries of that standard ever since.

Ziegler mapped out two directions the Dobbs case might take. The Supreme Court might agree to overturn Roe outright—or the justices could agree to let states ban abortion ahead of viability, leaving Roe intact on paper but hollowing out the landmark decision in reality.

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“If it’s not viability, then what is it? Lots of red states are saying it’s six weeks,” Ziegler said. “It becomes a free-for-all.”

Eight states have passed laws banning abortion at just six weeks into pregnancy, before many people know they’re pregnant, according to the Guttmacher Institute, which tracks abortion restrictions. None of those laws are currently in effect, thanks to court challenges.

The war over abortion rights has long been waged in incremental battles. Anti-abortion advocates have spent the past decade chipping away at Roe through state-level legislation that requires abortion patients to spend hours—sometimes days—before they can get the procedure or hear inaccurate medical information meant to deter them, among myriad other obstacles. 

Outright abortion bans like Mississippi’s have become popular only in the last few years, largely in the wake of Justice Brett Kavanaugh’s nomination to the Supreme Court. Even though the court quickly put these bans on ice, anti-abortion activists have pursued them as part of a deliberate legal strategy to give the Supreme Court a chance to directly reconsider Roe.

They’ve succeeded.