This decision marks the first time the court will rule on the constitutionality of a pre-viability abortion ban since Roe v. Wade.
Note: Abortion remains legal in all 50 states. Courts have enjoined all bans discussed in this article from going into effect.
Update May 19, 2021, 10:56 a.m. PT.: New ban just enacted in Texas. On Wednesday, Texas enacted a six-week ban “with a new, uniquely cruel twist,” according to Elizabeth Nash and Lauren Cross of the Guttmacher Institute: It would “allow anyone who is opposed to abortion—regardless of where they live or whether they have any association with a patient—to sue an abortion provider or anyone who helps a patient obtain an abortion, such as by providing financial help or transportation.”
On Monday, May 17, the U.S. Supreme Court agreed to hear an appeal in the case of Dobbs v. Jackson Women’s Health Organization. The case involves a Mississippi law banning most abortions after 15 weeks. The court will consider the question as to whether all previability prohibitions on abortion are unconstitutional.
The case is a direct challenge to the court’s precedents in Roe v. Wade and Casey v. Planned Parenthood ruling states cannot ban abortion before viability. This is the first time the court will rule on the constitutionality of a pre-viability abortion ban since Roe.
“Alarm bells are ringing loudly about the threat to reproductive rights. The Supreme Court just agreed to review an abortion ban that unquestionably violates nearly 50 years of Supreme Court precedent and is a test case to overturn Roe v. Wade,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which represents Jackson Women’s Health.
Mississippi passed the 15-week ban in 2018. A federal district court blocked the ban as unconstitutional in November of that year, and the Fifth Circuit Court of Appeals affirmed that ruling in December of 2019. Thirteen other states have passed unconstitutional abortion bans at various points in pregnancy since 2019, which courts have consistently struck down when challenged, including in Alabama, Arkansas, Georgia, Kentucky, Louisiana, Montana, Missouri, Ohio; Oklahoma, South Carolina, Tennessee, Texas, and Utah.
“It is incredibly concerning that the Supreme Court has taken a case that, based on its own precedents, it should have dismissed months ago,” said Elizabeth Nash, Guttmacher Institute’s principal policy associate for state Issues.
The court’s current makeup, with three justices appointed by Donald Trump, now has six justices hostile to abortion rights, and only three who have issued strong opinions on women’s fundamental right to abortion.
Multiple restrictions on abortion in Mississippi create steep barriers to abortion health care. Guttmacher ranks Mississippi as “very hostile” to abortion rights—one of six states ranked as such. Restrictions on abortion in Mississippi have led to the closing of all but one abortion clinic in the entire state.
“As the only abortion clinic left in Mississippi, we see patients who have spent weeks saving up the money to travel here and pay for child care, for a place to stay, and everything else involved,” said Diane Derzis, owner of Jackson Women’s Health Organization. “If this ban were to take effect, we would be forced to turn many of those patients away, and they would lose their right to abortion in this state. Mississippi politicians have created countless barriers for people trying to access abortion, intentionally pushing them later into pregnancy. It’s all part of their strategy to eliminate abortion access entirely.”
Mississippi’s web of restrictions delaying access to abortion health care includes a 24-hour waiting period requiring two visits to the clinic, a ban on telemedicine abortion, a requirement that the parents of a minor must consent before an abortion is provided, and severe restrictions on health insurance coverage for abortion health care. These restrictions delay access to care, making a 15-week deadline for abortion difficult for many women and especially girls to meet.
“There is no medical science that would support a 15-week ban in Mississippi or anywhere else,” said Dr. Daniel Grossman, director at Advancing New Standards in Reproductive Health. “Mississippi has tried to shut down all of their abortion clinics, leaving just one. This means patients are delayed in trying to travel across the state just to see a provider and raise the money to cover it. Banning abortion at 15 weeks makes this even harder.”
Mississippi Joins 46 Other States Launching Onslaught of Abortion Restrictions in 2021
This case could open the door to allowing the onslaught of abortion restrictions recently passed by states. This year has seen an unprecedented surge in abortion restrictions. The Guttmacher Institute reports that lawmakers across 47 states introduced 549 abortion restrictions since January, including 165 abortion bans (as of May 19, 2021). A staggering 70 of those restrictions have been enacted across 15 states, including 10 bans.
Abortion bans disproportionately threaten the health, rights and lives of young people, people of color and low-income people, who face more hurdles accessing abortion.
“This is not a drill,” said Nash. “The decision comes at a time when conservative politicians in over a dozen states are dismantling abortion rights and access with a vengeance and could eclipse even the record of enacted restrictions set in 2011. This onslaught of new restrictions has been motivated by a much more conservative judiciary and Supreme Court that conservatives hope are willing to gut Roe v. Wade or overturn it outright. Make no mistake: The purpose of any abortion ban—including this 15-week ban in Mississippi—is to snowball into an outright ban on all abortion at any point in pregnancy and for any reason.”
The current case will likely be heard during the next Supreme court term beginning in October of 2021, with a decision likely to come down in the summer of 2022 ahead of the mid-term elections.
“The consequences of a Roe reversal would be devastating,” said Northup. “Over 20 states would prohibit abortion outright. Eleven states—including Mississippi—currently have trigger bans on the books which would instantaneously ban abortion if Roe is overturned. Already, abortion is nearly impossible to access for people in states like Mississippi, where lawmakers have been chipping away at the right to abortion for decades. We will keep fighting to make sure that people do not lose this fundamental right to control their own bodies and futures.”