The Slatest

Mississippi Explicitly Asks the Supreme Court to Overturn Roe v. Wade

The marble exterior of the Supreme Court building viewed from the bottom of its front steps.
With a Supreme Court now lopsided with conservatives, Roe could go. DANIEL SLIM/Getty Images

The state of Mississippi made explicit Thursday its attempt to have the Supreme Court overturn Roe v. Wade, filing a brief that calls on the court to uphold the state’s current abortion restrictions en route to upending the nearly 50-year-old law that ensures access to abortion procedures in the U.S. Mississippi’s Republican attorney general, Lynn Fitch, filed the brief that seeks to persuade the court to dust off the settled law and break with precedent to allow the state’s prohibition on abortion services after 15 weeks of a pregnancy to stand. The legal standard established under Roe says states must allow access for abortions performed up until fetal viability around 24 weeks.

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Mississippi passed the restrictive abortion law in 2018, along with a slew of anti-abortion provisions that have been blocked by the courts, including a law restricting abortions after six weeks. The Supreme Court announced in May that it would hear the Dobbs v. Jackson Women’s Health Organization case, setting off alarm among abortion rights activists. The suit filed by the Jackson, Mississippi organization, the only abortion services provider in the state, contesting the 15-week law was successful in the lower courts, which cited precedent preventing states from restricting abortion access during the pre-viability stage. The Supreme Court, however, after months of hemming and hawing, announced that it would hear the state’s appeal of the case, raising the possibility it could choose to upend abortion pre-viability abortion restrictions that have been ruled unconstitutional as placing an undue burden on women seeking an abortion. In announcing its decision, the court stated explicitly it was out to reassess “whether all pre-viability prohibitions on elective abortions are unconstitutional.”

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The announcement signaled a tectonic shift in U.S. abortion law could be coming now that the court is lopsided with conservative justices. The Mississippi brief attempts to chip away at the viability standard, claiming advances in science and technology justify the state intervening earlier and earlier in a pregnancy. Even if the Supreme Court does not explicitly reverse Roe, there are other ways it could defang the law. “As an alternative, Mississippi said the court could reduce the heightened scrutiny that abortion laws must meet and find that Mississippi’s law meets legitimate objectives such as protecting the unborn, women’s health or the medical profession,” the Washington Post notes. “It could find that not all pre-viability abortions are unconstitutional, the state said, or that the 15-week restriction does not place an undue burden on a substantial number of women.”

What is clear is that the stakes are high and, as the Post notes, Thursday’s “brief emphasizes the potential presented in the case, Dobbs v. Jackson Women’s Health Organization, the most direct challenge to abortion rights at the Supreme Court in decades.” The Supreme Court is likely to hear the case later this year, in November or December, and a decision would be handed down by June of next year.

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