Towards the tail end of the Trump Presidency, there was much consternation amongst pro-choice people, and much celebration amongst pro-life people, at Trump’s successful replacement of iconic liberal Supreme Court Justice Ruth Bader Ginsburg with star conservative Justice Amy Coney Barrett.
Amongst those who watch the Supreme Court, the perception was that the move would create a 6-3 majority of people with conservative, pro-life legal views on the 9-member court.
Yesterday, the first evidence emerged that that perception might be true, as the court decided to take up what will be the biggest American legal battle over abortion for a generation:
BREAKING: The Supreme Court agrees to take up a major abortion case that will give the court an opportunity to reconsider Roe v. Wade and Planned Parenthood v. Casey. The case involves the constitutionality of Mississippi’s ban on most abortions after 15 weeks of pregnancy.
— SCOTUSblog (@SCOTUSblog) May 17, 2021
So, what is at stake?
Well, sadly for pro-lifers, the tweet above overstates the case a little bit. The issue at hand is a law passed in the state of Mississippi, which bans all abortions after 15 weeks of gestation. That law was ruled unconstitutional, under Roe versus Wade (the 1967 Supreme Court decision which made abortion a constitutional right in the USA) by lower courts. Mississippi has now appealed it to the Supreme Court.
The court was asked to consider the three questions on the right of your screen. But importantly, it has agreed only to consider the first of these.
The problem for pro-lifers is that while a positive ruling on question one would be very good news, it would be good news only in a specific and limited way: Upholding the Mississippi ban would make it legal and constitutional for other US States to ban abortion after 15 weeks – but no more than that.
There are, obviously, many US States who would leap at the chance to do just that, and many more who simply will not. Remember, even a positive ruling by the court would not make abortions after 15 weeks illegal – it would just make it legal for individual states to ban them. Since most Americans live in the more highly populated, liberal states, the reality is that regardless of the outcome, most abortions after 15 weeks that take place today would still be legal, even if Mississippi wins.
The court, meanwhile, has not decided to look at question two, which would be a much more consequential question. You might not understand it, given that it is phrased in legalese, but this is what it means:
In 1992, in Planned Parenthood v Casey (referred to as Casey, for short), the Supreme Court upheld Roe v Wade, and ruled that no state could pass a law that created an “undue burden” on a woman who wishes to have an abortion. But then in 2016, the court tweaked that slightly, in a case called Texas v Hellerstedt, in which they ruled that states must balance the “benefits and burdens” to women from a particular piece of abortion law. Many pro-life lawyers argue that a state is entitled to balance the benefits to the unborn with the burdens to the woman. If the Supreme Court were to agree with them on that, then many more abortion-restricting laws could be passed. But on this occasion, the Court has decided not to consider that question.
That, however, does not mean it will not consider it at a later date. The US Supreme Court is very reluctant to consider matters until they have passed through lower courts, and the dispute between the Casey and Hellerstedt approaches is currently a live issue in those lower courts. There is every chance the court will revisit it later.
By the way: Do not assume that Mississippi is guaranteed to win this case on the first question. It only takes four justices to agree to hear a case. It takes five to make a decision. But even if this case ends up not changing much, it will be very closely watched, to see where this new Supreme Court, and its Trump-appointed majority-makers, stand on the question of abortion.