What You Need To Know About the Mississippi Abortion Case

You’ve probably seen on social media and the news talk about the Supreme Court taking on abortion rights. So is this decision banning all abortions? What does this all actually mean once you get through all the political and social noise? 

In 2018, Mississippi passed a law banning most abortions after 15 weeks. There were narrow exceptions for medical emergencies and severe fetal abnormalities. The only abortion clinic in Mississippi sued the state, saying that this law was unconstitutional because it violated Roe v. Wade. Lower courts agreed and blocked the ban, and that is how the case made its way to the Supreme Court. The case is Dobbs v. Jackson Women’s Health Organization. 

Roe v. Wade is a 1973 Supreme Court case that established a constitutional right to an abortion and told states they can’t ban abortions before fetal viability at 23 weeks. A later case, Planned Parenthood v. Casey reaffirmed Roe v. Wade. Together, these two cases have provided a woman’s right to an abortion in the U.S. This is why everyone is now talking about this Mississippi case - by setting fetal viability at 15 weeks, this is a direct challenge to Roe v. Wade. 

What’s next? 

The Supreme Court heard oral arguments on this case on December 1. But, a final decision is not expected until June or July. A lot of news sources are saying the Supreme Court appears open to overruling Roe v. Wade, but that’s just assumptions based on how the oral arguments went. During these arguments, the justices can ask the two opposing parties any questions they want to, and their questions seemed like they were considering letting the Mississippi law stand. 

But, we won’t know for sure for a while. The nine justices will vote privately in conference soon, and then the majority opinion will get assigned to one of the justices to be drafted. On average, it takes the court about three months to issue a decision, with major decisions like this taking even longer as the opinion is circulated and discussed amongst the justices. 

What are the possible outcomes? 

The Supreme Court is seen to have a conservative majority right now, with six justices said to lean conservative in their views and three liberal. However, the court is not meant to be political so their goal is to only rule on the law. Which means, sometimes, a “conservative” justice will appear to rule in a “liberal” way and vice versa. 

So, that being said, we just don’t know which way the court will end up, but there are some options: 

• Option 1: Overturn Roe v. Wade and Planned Parenthood v. Casey. This would allow states to ban abortions at any time during a pregnancy or entirely.

• Option 2: Uphold the Mississippi law, but not overturn Roe v. Wade. This would be a more narrow approach. This would mean states could change their laws to ban abortions after 15 weeks (down from the current 24 week threshold). 

• Option 3: Find the Mississippi law unconstitutional and uphold Roe v. Wade, which would basically keep things as they are for abortion rights in the U.S. 

If the court overturns Roe v. Wade, at least 12 states have “trigger laws” in place. Basically, these are laws designed to take effect automatically to outlaw abortion in those states if Roe v. Wade is overruled and no longer applies. 

Those laws, combined with other states that would likely pass laws banning abortion, means that if Roe v. Wade is overruled, at least 20 states would make abortions illegal almost immediately after the Supreme Court issues its decision. As a result, women would have to travel further to get an abortion (some sources are saying this could go from 25 miles to 125 miles distance). 

On the other hand, at least 15 states have laws that would keep abortion legal even if Roe v. Wade is overturned. If you’re curious, this article includes a map of how states would treat abortion if Roe v. Wade is overturned in this court case. 

May 4, 2022 Update: On May 2, Politico published an article based on a leaked document they obtained containing the first draft of the Supreme Court’s opinion that allegedly will overrule Roe v. Wade (the case that in 1973 guaranteed constitutional protections of abortion rights).

The draft opinion says that abortion rights should be a decision left to the people and elected officials, because the Constitution doesn’t mention abortion and so therefore the issue should be determined at the state level.

Note, this is the first draft of the opinion. The court has until the end of June when their session ends to issue a final opinion. The way the Supreme Court works is that after they hear arguments, they have a conference where the justices meet to discuss the case and then cast their initial votes. They then assign which justice is going to write the majority and dissenting opinions. The justices’ clerks will then draft the opinions and those get circulated among the other justices and revised as needed before a final opinion is issued. Justices can change their vote in the process. This means that this case could flip the other way before a final decision is issued.

What other questions do you have about this case and its potential impact?