In Direct Threat to Roe v. Wade, Supreme Court Takes Up Mississippi Abortion Case
On May 17, the U.S. Supreme Court announced that it will hear a case on Mississippi’s ban on nearly all abortions starting at 15 weeks of pregnancy, which is currently blocked by lower courts. The Court will address whether states can ban at least some abortions before fetal viability—directly challenging its decision in Roe v. Wade. For nearly 50 years, the Court has held that abortion rights are protected under the U.S. Constitution, yet by taking this case, the Court is signaling that these rights are in serious jeopardy. This is the first time the Court has agreed to review a previability gestational age ban since Roe.
The Path to the Court
The decision to hear the Mississippi case comes as abortion rights are already under unrelenting assault around the country, with states on pace to enact a record number of abortion restrictions this year. As of May 16, 2021, 549 abortion restrictions, including 165 abortion bans, have been introduced across 47 states. A staggering 69 of those restrictions have been enacted already across 14 states, including nine bans. (In Texas, a ban on abortions at six weeks of pregnancy is currently awaiting action by Gov. Greg Abbott (R). If that bill is signed into law as expected, the count of abortion restrictions enacted so far this year will increase to 70 in 15 states, including 10 abortion bans.)
To put those figures in context, by the same date in 2011—the year previously regarded as the most hostile to abortion rights since Roe was decided—58 restrictions had been enacted, including seven bans.
This onslaught of new restrictions has been motivated by a recent shift to a much more conservative federal judiciary and a Supreme Court majority that conservatives hope is willing to gut Roe v. Wade or overturn it completely. In just four years, then-President Trump appointed more than 200 federal judges—nearly three in 10 of all active federal judges in the United States, and three of the nine justices on the U.S. Supreme Court.
As our March 2021 analysis predicted, state policymakers are testing the limits of what the new Supreme Court majority might allow and laying the groundwork for a day when federal constitutional protections for abortion are weakened or eliminated entirely. Furthermore, any decision that weakens or overturns Roe would have the biggest effect on people already marginalized and oppressed by structural inequities, including people with low incomes, people of color, young people and LGBTQ people.
Opening the Floodgates
By taking the Mississippi case, the 6-3 antiabortion majority on the Supreme Court has signaled that it is ready to revisit abortion rights. This action may embolden conservative state lawmakers to enact even more restrictions on abortion this year and beyond.
For years, antiabortion activists have been teeing up blatantly unconstitutional state laws to lie in wait for a day when Roe is gone or drastically undermined. Ten states have provisions to ban all or nearly all abortions that would be triggered if Roe were overturned. Additionally, four states have passed a constitutional amendment explicitly declaring that their state constitution does not secure or protect the right to abortion or allow use of public funds for abortion.
Seventeen states have now passed laws in an attempt to ban abortion at or before 20 weeks: Alabama, Arkansas, Arizona, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, Tennessee and Utah. Most of these bans are not in effect.
Abortion bans and restrictions are going to remain on the agenda for many state legislatures for the remainder of 2021 and in 2022, primarily in the South, the Plains and the Midwest. With the potential for the Supreme Court to severely curtail abortion rights, antiabortion policymakers are likely to continue to enact a wide range of restrictions in the hopes that these laws either will be allowed to go into effect or will be fodder for the next abortion case to reach the Court.
Impact on Mississippi
Abortion access has already been decimated in Mississippi, even with the 15-week abortion ban blocked. Currently:
- There is only one abortion clinic remaining in the entire state and 91% of Mississippi women lived outside that county in 2017.
- Mississippi is already considered "very hostile" to abortion rights (one of six states ranked as such by the Guttmacher Institute).
- There were 683,000 women of reproductive age (15–49) in Mississippi in 2019.
In Mississippi, the following restrictions on abortion were in effect as of May 2020:
- Abortion would be banned if Roe v. Wade were overturned (a so-called trigger law).
- A patient must receive state-directed counseling that includes information designed to discourage the patient from having an abortion, and then wait 24 hours before the procedure is provided. Counseling must be provided in person and must take place before the waiting period begins, thereby necessitating two trips to the facility.
- A patient must undergo an ultrasound before obtaining an abortion; the provider must offer the patient the option to view the image.
- The parents of a minor must consent before an abortion is provided.
- Public funding is available for abortion only in cases of life endangerment, rape, incest or fetal impairment.
- Health plans offered in the state’s health exchange under the Affordable Care Act can only cover abortion in cases of life endangerment, rape or incest.
- Abortion is covered in insurance policies for public employees only in cases of life endangerment, rape, incest or fetal anomaly.
- The use of telemedicine to administer medication abortion is prohibited.
- The use of a safe, effective and commonly used method of second trimester abortion is prohibited. Abortions using dilation and evacuation are permitted only in cases of life endangerment or severely compromised physical health.
- An abortion may be performed at 18 or more weeks postfertilization (20 weeks after the last menstrual period) only in cases of life endangerment, severely compromised health, or when there is a lethal fetal anomaly. This law is based on the assertion, which is not consistent with scientific evidence and has been rejected by the medical community, that a fetus can feel pain at that point in pregnancy.
- The state prohibits abortions performed for the purpose of race or sex selection, or in response to genetic anomaly.
- The state requires abortion clinics to meet unnecessary and burdensome standards related to their physical plant, equipment and staffing.