In a sign that the Supreme Court may be poised to deal a serious blow to a key aspect of the landmark ruling in Roe v. Wade, it was announced Monday that the justices have agreed to hear a Mississippi case centering on the question of when viability begins in the womb, as Fox News reports.
In the case at issue, Thomas Dobbs v. Jackson Women’s Health, the Mississippi attorney general is asking the high court to determine the constitutionality of a state statute from 2018 that bans abortion after 15 weeks. According to the petition for certiorari, that requires the justices to review and resolve ambiguities in its own prior decisions about the point at which viability truly begins, as the Associated Press noted.
The statute in Mississippi would permit abortions beyond 15 weeks if profound fetal abnormality was found or if there was a medical emergency threatening the mother’s life. If allowed to take effect, doctors who violate the law would be subject to medical license suspension or revocation, the AP added.
Mississippi’s ban on abortions past 15 weeks of gestation has previously been thwarted by lower courts that held it to be inconsistent with Supreme Court decisions protecting the right to an abortion at any point before a fetus is able to survive on its own.
The abortion clinic has argued that viability before 15 weeks is not possible and that 24 weeks is the true threshold beyond which babies stand a strong chance of survival outside the womb. The state, however, claims that viability represents an arbitrary measure that disregard’s the government’s interest in imposing limits on abortion.
In expressing optimism regarding the case, John Bursch of the Alliance Defending Freedom said, “The Supreme Court has repeatedly recognized that states are free to regulate late-term abortions. Thanks to amazing progress in scientific research and medical technology, the concept of ‘viability’ is an ever-moving target as younger children have survived and thrived after pre-term birth.”
Bursch added, “But ‘viability’ has never been a legitimate way to determine a developing infant’s dignity or to decide anybody’s legal existence. The high court should take this important opportunity to resolve the conflicts between its previous rulings and affirm the constitutionality of Mississippi’s law.”
Hillary Schneller, a lawyer representing the abortion clinic in the case disagreed, arguing, “In an unbroken line of decisions over the last fifty years, this Court has held that the Constitution guarantees each person the right to decide whether to continue a pre-viability pregnancy,” and that the state’s claims were “based on a misunderstanding of the core principle” of prior SCOTUS rulings, according to CNBC.
Notably, the high court has declined prior opportunities to hear appeals focused on previability bans on abortion, and the justices delayed action on this case for a number of months. Now, in the absence of late Justice Ruth Bader Ginsburg – a zealous proponent of abortion rights – and the ascension to the bench of conservative Justice Amy Coney Barrett, it appears the court may well be prepared to effect a significant shift in this important area of jurisprudence.