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Supreme Court takes up Mississippi abortion challenge

The court is being asked to decide whether all pre-viability prohibitions on elective abortions are unconstitutional. 

Susan Morse, Managing Editor

Supreme Court Chief Justice John Roberts

Photo: Drew Angerer/Getty Images

The Supreme Court will hear an abortion case that could upend the 1973 landmark decision Roe v. Wade and the 1992 Planned Parenthood v. Casey decision, which ruled on a woman's right to an abortion before a fetus becomes viable. 

Dobbs v. Jackson Women's Health Organization brings up issues of how healthcare innovation and technology could change the definition of viability.

Thomas E. Dobbs is state health officer of the Mississippi Department of Health. In 2018, Mississippi enacted the Gestational Age Act, which allows abortions after 15 weeks' gestational age only in medical emergencies or for severe fetal abnormalities. 

Abortion provider Jackson Women's Health Organization challenged the constitutionality of the law and won in federal district court, according to SCOTUS blog, The decision was based on previous decisions by the Supreme Court that said states could not ban abortions before a fetus became viable, which occurred at around 24 weeks of pregnancy.

Mississippi lost on appeal on December 13, 2019, with a rehearing also denied on January 17, 2020.

The case is now at the Supreme Court, where on Monday, the court said it would hear only Question 1 in the petition by Mississippi, of whether all pre-viability prohibitions on elective abortions are unconstitutional. 


Mississippi's argument is that viability today is much different than it was in 1973 when Roe v. Wade was decided, or even in 1992 for the Planned Parenthood v. Casey ruling.

In 1970s Mississippi, viability could not have prohibited abortion of a 24-week fetus because the fetus would not have been viable, the petition said. Today the state could enact such a law, it said. 

"Tomorrow, the development of an artificial womb will inevitably move the viability line to the moment of conception," the petition said.

"Imposing an inflexible viability standard eviscerates 'the states' ability to account for advances in medical and scientific knowledge that have greatly expanded our knowledge of prenatal life,'" the petition said, quoting a 2012 court case.

Mississippi also argues for states' rights and said that former Justice Sandra Day O'Connor, as the dissenting voice during a 1983 ruling wrote, "'Potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward … [T]he state's interest in protecting potential human life exists throughout the pregnancy.'" 


The make-up of the Supreme Court shifted significantly following the death of Justice Ruth Bader Ginsburg in September. Ginsburg, a strong supporter of abortion rights, was replaced by conservative Justice Amy Coney Barrett.

There is currently a 6-3 balance between justices appointed by a Republican president and those appointed by a Democratic president.

A challenge to Roe v. Wade has been the expected outcome of the shift to a more conservative court.


"Denying people access to abortion, a basic healthcare procedure, has long-term negative impact on health, mental health and the economic well-being of the whole family," said Health Care for America Now executive director Margarida Jorge. "The Supreme Court has the opportunity to protect reproductive healthcare and access for thousands of people in Mississippi and millions across the country. The court must reject the systematic campaign to overturn Roe v. Wade that would put abortion out of reach for everyone, and instead, reaffirm what we already know: abortion is an essential component of healthcare and economic security for women and their families."

Twitter: @SusanJMorse
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