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Amy Coney Barrett has only been a Supreme Court justice for a little over a month, but the high court is already facing a case that could give the conservative darling a chance to dismantle abortion rights across much of the United States.
The Supreme Court announced Monday that the justices will meet on Friday to talk about whether to hear the case of Dobbs v. Jackson Women’s Health Organization, which involves a 2018 Mississippi law that banned all abortions after 15 weeks of pregnancy. The law allows for abortions in medical emergencies or in cases of a severe fetal abnormality, but there are no exceptions for rape or incest.
The law was only in effect for a few hours before it was halted by a legal challenge from Mississippi’s only abortion clinic, Jackson Women’s Health Organization. Under Roe v. Wade—the 1973 Supreme Court case that legalized abortion nationwide—states can’t ban abortion before the fetus would be viable to live outside the uterus, which is generally dated at around 24 weeks. But Mississippi’s law has continued to wind its way through the courts, and over the summer, the state asked the Supreme Court to evaluate whether “all pre-viability prohibitions on elective abortions are constitutional.”
That language poses a direct challenge to Roe. And if the Supreme Court, with its new, roomy 6-3 conservative majority, decides to take on the Mississippi case, it would set off a five-alarm fire among abortion rights supporters.
It takes only four justices to agree for the Supreme Court to review a case; so far, this case has been rescheduled for conference eight times.
“There’s no path to upholding a ban like this that doesn’t contradict Roe v. Wade’s core holding,” said Hillary Schneller, senior staff attorney for the Center for Reproductive Rights, which is representing Jackson Women’s Health Organization.
Without the protections in Roe, states would be free to regulate abortion as much as they want—which means it would likely become illegal in much of the U.S. Ten states have passed laws that would prohibit all or almost all abortions if Roe disappears, according to the Guttmacher Institute, which tracks abortion restrictions. Nine states still have old abortion bans on the books from the days before Roe. Seven states have passed laws affirming their plan to restrict legal abortion as much as possible.
“Do they [the justices] really want to reconsider an issue that has been well-settled for all of that time and that generations of people have grown up relying on this fundamental right?”
In the months since Mississippi first asked the justices to weigh in on the case, the calculus of the nation’s highest court has shifted dramatically: After the September death of liberal icon Justice Ruth Bader Ginsburg, Senate Republicans rammed through confirming Barrett, who has suggested multiple times that she personally opposes abortion, to fill Ginsburg’s seat.
During her Senate confirmation hearing, Barrett repeatedly dodged questions about her thoughts on various abortion-related cases; she even refused to say whether she thought Griswold v. Connecticut—the 1965 case that gave married couples the right to contraception and paved the way for Roe—was correctly decided, even though past Supreme Court nominees (like now-Chief Justice John Roberts) have admitted that they agreed with Griswold.
But Barrett did indicate that she does not see Roe as settled law. She refused to define it as a “super precedent,” a legal theory that she said referred to cases so settled that no serious person tries to challenge them.
Under that definition, Barrett’s not wrong: Scores of laws and lawsuits have sought to undermine Roe in the four decades since its inception. The year after Mississippi’s 15-week ban stumbled in the courts, the state passed an even harsher ban that prohibited abortions after just six weeks of pregnancy—before many people even know they’re pregnant. (Predictably, that law was also blocked by a legal challenge; in a ruling against it, one frustrated judge wrote, “Here we go again.”)
“There’s no question that Justice Barrett’s confirmation to the court is very alarming for abortion rights activists,” Schneller said. “This is a case that flies in the face of 50 years of the court’s precedent so it’s both about the right to abortion itself—and the stakes are certainly very high on that front alone—but it’s also a case, right, about the court’s legitimacy.”
The question of whether Supreme Court justices need to respect the decisions made by their predecessors—and thus how much their refusal to could undermine the one branch of government that’s supposed to be free of politics—now lies at the fiery center of the legal fight over abortion.
“Do they [the justices] really want to reconsider an issue that has been well-settled for all of that time and that generations of people have grown up relying on this fundamental right?” Schneller said.
The last time the Supreme Court heard arguments in an abortion case, abortion rights supporters narrowly eked out a win, largely thanks to Roberts’ belief that the justices must respect the court’s past decisions. In June, Roberts, a George W. Bush nominee, sided with the liberal wing of the court in June Medical Services v. Russo, striking down a Louisiana abortion restriction that, lawyers said, would’ve forced all but one of the state’s clinics to close.
The restriction was essentially identical to a Texas abortion law that the Supreme Court had struck down in a 2016 case, Whole Woman’s Health v. Hellerstedt. Although June Medical Services was considered a victory for abortion access, Roberts suggested in his opinion that he’d be open to supporting abortion restrictions in the future—as long as they didn’t look so similar to a recent case.
Some lower-court judges have now used the Roberts’ opinion as evidence that a handful of abortion restrictions should be able to go into effect. In October, just days before Barrett’s confirmation, lawyers for Mississippi filed a brief to the Supreme Court, renewing their request that the justices consider the state’s 15-week ban. They cited the lower courts’ disagreements as proof that the Supreme Court needs to take their case and clarify how, exactly, states can limit abortion.
In the brief, Mississippi Attorney General Lynn Fitch described the case as “an ideal vehicle” to untangle “the contradictions in this Court’s decisions over use of ‘viability’ as a bright line for measuring pro-life legislation.”
But if the justices do ultimately decline to take Dobbs v. Jackson Women’s Health Organization, the justices will likely have another opportunity to weigh in on abortion: More than a dozen abortion cases are now circling the lower courts.
There’s even another lawsuit already up in front of the Supreme Court: In October, the American Medical Association asked it to consider a case involving the Trump administration’s restrictions on referrals for abortions for providers in the Title X network, the largest federal program dedicated to funding family planning.