Abortion is among the most contentious issues in the country today. On December 1st, the Supreme Court will hear the first abortion case since Justice Amy Coney Barrett was seated and cemented a solid 6-3 conservative majority on the bench. The case under consideration, Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health v. Jackson Women’s Health Organizationinvolves a Mississippi law banning all abortions over 15 weeks gestational age except in medical emergencies and in the case of severe fetal abnormality. In this case, Mississippi is asking the Court to overturn the long-standing precedent of Roe v. Wade. While the Supreme Court has considered other abortion cases involving state regulations, this is the first case that the high court has taken in which a state is directly asking the Court to overturn the constitutional right to abortion. This issue brief provides background on the legal challenges to the Mississippi law in the context of the Supreme Court abortion precedents, addresses the intersections with the litigation that has arisen from S.B. 8, the Texas 6-week abortion ban, and explains the potential outcomes and how they could impact access to abortion around the country.

Mississippi Law and Lower Court Decisions

In 2018, Mississippi enacted HB 1510, the Gestational Age Act, which bans all abortions after 15 weeks since the first day of the last menstrual period (LMP) except in medical emergencies and in cases of severe fetal abnormality, and without an exception for pregnancies resulting from rape or incest. Mississippi is asking the Court to allow states to ban abortions at a point much earlier than the current viability standard established by Roe v. Wade, a point where the pregnancy cannot survive outside of the pregnant person’s uterus, typically understood to be between 24 and 28 weeks of pregnancy. On March 19, 2018, the same day the Governor signed the bill, and when it was set to take effect, Jackson Women’s Health, the only abortion provider in Mississippi, challenged the law in federal court. The US District Court for the Southern District of Mississippi and then the 5th Circuit Court of Appeals both struck the law down as unconstitutional. The State then appealed to the Supreme Court, which accepted the case for review this term.

The Supreme Court accepted this case to review “whether all pre-viability prohibitions on elective abortions are unconstitutional.”

Mississippi is not contending that 15 weeks gestation is a point in pregnancy when a fetus is viable outside the womb, but rather is asking the Supreme Court to either overturn the constitutional right to abortion or to allow states to ban some pre-viability abortions if it does not “burden a substantial number of women.” Although Roe v. Wade does not permit states to ban pre-viability abortions, some state laws that have pre-viability bans later in pregnancy have not been challenged in court. For example, in 2014 Mississippi passed a law banning abortions at 20 weeks LMP with an exception for medical emergency and a fatal fetal anomaly. This law has not been challenged and is currently in effect. Jackson Women’s Health, the only abortion provider in Mississippi, only provides abortions up to 16 weeks. Sixteen states have laws banning abortion at 22 weeks in effect. None of these laws have been challenged. North Carolina’s law banning abortion after 20 weeks was challenged and struck down as unconstitutional by the 4th Circuit Court of Appeals.

Background on Previous Court Decisions on Abortion

To understand this case, it is important to review the Supreme Court’s prior decisions, particularly those that have resulted in the Court ruling on how an individual’s constitutional right to abortion is balanced with a state’s right to protect unborn lifeIn 1973, the Supreme Court’s Roe v. Wade decision established the constitutional right to abortion before the pregnancy is considered to be viable, that is, can survive outside of a pregnant person’s uterus. The Supreme Court has grappled with how to best balance a state’s legitimate interest in protecting the health of pregnant people, and the “potentiality of human life” with a person’s constitutional right to privacy, which includes the right to terminate a pregnancy. As a result of the Court’s decision in Roe, states have not been permitted to issue bans on abortion before viability.

Supreme Court’s Explanation of Undue Burden in Casey v. Planned Parenthood
“A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. Under the current precedent, a statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”
However, the Supreme Court’s 1992 decision for Planned Parenthood v. Casey established the right of states to regulate abortion services before viability as long as the regulation does not place an “undue burden” on women seeking an abortion.

“Undue burden” is a shorthand used when a state regulation has been found to have the purpose or effect of placing a substantial obstacle in the path of a person seeking an abortion. The Casey Court stated that the proper standard is “whether in a large fraction of the cases in which [the restriction] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” This concept of the “large fraction of cases” was addressed and reinforced in the 2016 Supreme Court case Whole Woman’s Health v. Hellerstedt in which the denominator in the undue burden question was defined as “the number of [patients] for whom the restriction is an actual rather than irrelevant restriction.”

Since the Casey decision in 1992, many states have enacted a wide range of restrictions such as counseling, ultrasound and waiting period requirements, parental notification and consent requirements, restrictions on insurance coverage for abortion, and regulations specific to facilities and clinicians providing abortions. In Whole Woman’s Health, the Supreme Court clarified that abortion restrictions are only constitutional if they further a valid state interest and have benefits that outweigh the burdens placed on women seeking abortions. The benefits and burdens of the laws must be based on credible evidence. The Court emphasized that the previous standard established in Planned Parenthood of Southeastern PA. v. Casey “[u]necessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”

The rule announced in Casey “requires that courts consider the burdens a law imposed on abortion access together with the benefits those laws confer.” However, in his concurrence in June Medical Services, Chief Justice Roberts signaled that the standard by which the Court will evaluate an undue burden is in flux. Chief Justice Roberts suggests that the Court should analyze the constitutionality of abortion laws by asking whether the law places a substantial obstacle in the path of a woman seeking an abortion, without balancing the burdens with the benefits of the law, as the Court did in Whole Woman’s Health. In future cases, under a new standard that does not review whether the state law in question yields any benefits, the Court may be willing to allow states to enact additional restrictions similar to admitting privileges, with no evidence that the restrictions benefit people seeking abortions, as long as the restriction does not place a substantial obstacle. In addition, the Court may disavow the precedent also set in Whole Woman’s Health that courts can look beyond the legislature’s declaration of benefit to women and review medical and scientific evidence about whether the law provides a benefit to women.

Mississippi is asking the Supreme Court to Overturn the Constitutional Right to Abortion Established by Roe v. Wade

Mississippi contends that Roe and Casey were both decided incorrectly. As argued in Mississippi’s brief to the Supreme Court: “Roe and Casey have proven hopelessly unworkable. Heightened scrutiny of abortion restrictions has not promoted administrability or predictability. And heightened scrutiny of abortion laws can never serve those aims. Because the Constitution does not protect a right to abortion, it provides no guidance to courts on how to account for the interests in this context.”

Roe v. Wade established that states could ban abortion at viability
“With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the matter.”

Mississippi contends that the Court’s viability standard set in Roe v. Wade is unsatisfactory and does not allow the state to protect unborn life or maternal health. The state claims its interest in protecting potential life and women’s health is the same before and after viability, but the standard set in Roe prohibits it from protecting life before viability. Mississippi also contends that Roe is outdated: “[N]umerous laws enacted since Roe— addressing pregnancy discrimination, requiring leave time, assisting with childcare, and more—facilitate the ability of women to pursue both career success and a rich family life.” Furthermore, Mississippi argues abortion is not necessary for women to participate equally in economic life because contraception is widely available. However, as Jackson Women’s Health states in their brief, contraception is not universally available and is not fail-safe. “Further, many indicators of gender equality continue to lag behind the ideal Mississippi imagines. Pregnancy and caregiver discrimination persist and remain difficult to root out.”

Jackson Women’s Health contends that viability is the central principle in Roe and Casey and there is no basis for overruling the viability line. Mississippi’s argument “was raised in Casey, and the Court gave careful regard to the state’s asserted interests, including in fetal life. Having considered each of the state’s arguments, the Court reaffirmed that the viability line strikes a principled and workable balance between individual liberty and any countervailing government interests.” Under the legal principle of stare decisis, the Court is obligated to uphold precedents when there is no factual or legal basis to overrule them.

As an alternative to overturning the constitutional right to abortion, Mississippi is asking the Court to remove viability as the line for when abortion can be banned

Mississippi is asking the Court to allow states to ban abortions at a point much earlier than the current viability standard established by Roe v Wade, a point where the pregnancy cannot survive outside of the pregnant person’s uterus. While the undue burden standard established in Casey has been applied to abortion regulations, it has never been applied to pre-viability abortion bans. Mississippi is asking the Court to apply the undue burden standard in this case and conclude that the law is constitutional. Mississippi claims the 15-week ban does not impose a substantial obstacle to “a significant number of women” seeking abortions. Jackson Women’s Health, the only abortion provider in Mississippi, provides abortions up to 16 weeks. Mississippi cites that at most 4.5% of the women who obtain abortions from Jackson Women’s Health did so after 15 weeks gestation.

In their brief, Jackson Women’s Health contends that the “State’s brute number crunching is at odds with the recognition of constitutional rights in general. The very essence of a constitutional right is that the government cannot outright prohibit a certain subset of people no matter how small from exercising that right.” “For most of the tens of thousands of people each year who obtain an abortion after 15 weeks, however, accessing abortion care earlier is not possible. More than half of second-trimester abortion patients miss the window for a first-trimester abortion simply because of delays in recognizing or suspecting they are pregnant. Late recognition of pregnancy is especially common for young people, people using contraceptives, or people who are pregnant for the first time. Others who seek abortion in the second trimester do so because health conditions develop or worsen as the pregnancy progresses, or because of significant changes in their life over the course of their pregnancy. Second-trimester patients may also not seek abortion care earlier because they are taking time to consult with family or a health professional before making this deeply personal decision.”

If the Court adopts Mississippi’s contention that the undue burden standard can be applied to a pre-viability ban, and that the law is constitutional if does not impact a substantial number of people seeking abortions in Mississippi, the Court will need to estimate how many people the ban does impact. This estimate, however, could be derived in several different ways. In fact, the share of women in Mississippi who get abortions after 15 weeks is very likely an undercount of Mississippi residents who obtained abortions after 15 weeks. This is because there are no providers in Mississippi who offer abortion services after 16 weeks, and therefore must travel out of state to obtain their abortions. According to the CDC, many of the patients who obtain abortions in the states that border Mississippi –16% of abortions in Alabama and in Louisiana, and 19% of abortions in Tennessee — were obtained by out-of-state residents. If any of these patients came from Mississippi, they would not be reflected in the Mississippi abortion statistics.

Potential Outcomes

At stake is whether the Court will continue to uphold the standard it set with the Roe v Wade and Planned Parenthood v. Casey decisions. Over the years, subsequent rulings have expanded the ability of states to impose restrictions on pre-viability abortions, but this case could change the viability standard and permit states to ban some or all pre-viability abortions. If the Supreme Court allows the Mississippi law to stand, no matter the rationale they use to arrive at that decision, it will be effectively overturning Roe and Casey. While the Court may try to frame their ruling as in line with precedent, there is likely no way for the Court to uphold a state’s pre-viability ban without overruling years of precedent. Below we explain three possible outcomes of this case.

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Figure 1: Abortion and SCOTUS: What might a conservative majority do to abortion rights?

First Possible Decision: The Court Overrules Roe v. Wade allowing states to ban all abortions

If the Supreme Court overturns Roe v. Wade and allows states to ban or restrict abortion before viability, 18 states have laws that are intended to immediately ban abortion; eight of these states have a law banning abortion on the books that predates Roe v. Wade and twelve states have expressed the intent to limit abortion to the maximum extent permitted by federal law (Figure 2). Thirteen states and DC have laws protecting abortion access. Eight states (see Appendix 1) have State Supreme Court decisions recognizing the right to abortion under the state constitution. If the Supreme Court overturns Roe, then some of these states and others without laws might pass state laws banning pre-viability abortions. This would likely lead to a raft of new cases that would be challenged in the state courts. It would be up to the State Supreme Court to either re-affirm the previous decision that the state constitution protects abortion or overrule that decision.

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Figure 2: 18 States Would Effectively Ban Abortion if Roe v. Wade is Overturned

Second Possible Decision: The Court Overturns Roe v. Wade establishing a new standard for the circumstances in which states may ban pre-viability abortions

The Supreme Court has never evaluated a state ban on abortions pre-viability using the undue burden standard. If the Court establishes a new standard to evaluate an undue burden and does not allow for states to ban all abortions, the Court’s decision may open the door to new state gestational bans as well as new state regulations. This could create the need for the Court to establish the parameters for a fact-based inquiry for each state’s gestational ban to determine how many women seeking abortions would be burdened. If the Court only looks at the number of women who have successfully accessed abortion services in states with many abortion restrictions, they may be undercounting the number of women who sought abortion services and went out of state or were ultimately unable to obtain abortions. Depending on how the Court rules, we may see a flood of future cases make their way to the Supreme Court to try to test how early in pregnancy states can ban abortions in the absence of a full ban. Ten states have passed six-week bans, and two others have passed laws fully banning all abortions at conception.

Third Possible Decision: The Court Re-affirms Roe and Casey

While it is impossible to predict the outcome of a Supreme Court case, the Court appears unlikely to re-affirm Roe and Casey, given the 6 to 3 conservative majority. The Supreme Court’s willingness to hear this case, rather than affirming the lower court’s ruling without review, may signify that the Court is ready to modify the long-standing precedent that states may not ban abortions before viability. However, because only 4 justices need to vote to review a case, sometimes the Court will accept a case and then affirm the lower court’s decision.

There are other indications that the Court might be poised to change the abortion precedents. Most recently, in a 5-4 decision the Court refused to block a Texas law, effectively halting most abortion policies in the state, while the litigation challenging the Texas law works its way through the courts.

How does Texas SB8 relate to the Dobbs Case?
While the Dobbs case made its way to the Supreme Court through the usual appeal process and request for the Court to hear the case, the Court also issues emergency orders in what is called the “shadow docket.” In these situations, the Court does not hear an oral argument. In May of 2021, Texas enacted a law, effective September 1st, 2021, banning nearly all abortions after 6 weeks, deputizing individuals to enforce the law by suing any person that provides, or helps a person obtain an abortion before 6 weeks. Abortion clinics in Texas sued on the constitutionality of this law, and the case made its way to the 5th Circuit Court of Appeals, which refused to block the law. The clinics then brought an emergency request to the Supreme Court to block the law which the Court denied on procedural grounds. While the impact of the Court allowing the law to go into effect is that people in Texas cannot access abortion, the Court wrote: “this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.” On October 22, 2021, the Court denied the request from the US Department of Justice to block the law. The Court heard oral argument on November 1, 2021 to consider the case brought by the Texas clinics challenging the unique enforcement provisions, and the ability of the Department of Justice to challenge the law, but not to consider the constitutionality of banning abortion pre-viability.

While there is much speculation about the Court’s decisions to allow the Texas law to take effect and remain in effect, even though it bans nearly all abortions, predicts the Court’s decision in Dobbs, the Court was not directly considering the constitutionality of pre-viability abortion bans as the Court will have to do in Dobbs.

Looking Ahead

The Supreme Court is hearing Dobbs at a time when state and federal actions have raised the stakes on the future of abortion access. In 2021, 19 states have enacted over 100 restrictions, including 12 abortion bans. People in Texas are effectively living in a post-Roe state where there is essentially no access to abortion. President Biden has endorsed, and the House of Representatives has passed The Women’s Health Protection Act. Although unlikely to secure enough votes to pass the US Senate, this law would statutorily protect a person’s ability to seek an abortion and a health care providers’ right to provide abortion. Access to safe legal abortions will likely increasingly depend on where you live. If the Supreme Court allows states to ban abortion pre-viability, then the national divide in access to abortion care will be intensified. The significance of this case and the possible ramifications has prompted a broad range of abortion rights advocates and opponents alike to weigh into whether the Court should overturn Roe by submitting amicus briefs. The Court’s decision is expected in June 2022, just 6 months before the Congressional mid-term election.

Appendix

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