Supreme Court to consider Mississippi 15-week abortion ban with new conservative majority

WASHINGTON – The Supreme Court agreed Monday to hear a challenge to Mississippi's ban on most abortions after 15 weeks of pregnancy, giving the court's new conservative majority the chance to consider a direct test of the landmark Roe v. Wade decision. 

By taking the case the court is wading into one of the nation's most polarizing issues after a term in which the justices appeared to shy from such controversies. A decision is not expected until next year, potentially landing months ahead of the 2022 midterm election.  

The court's 1973 decision in Roe found that women have a constitutional right to abortion and a subsequent decision from the high court in 1992 reaffirmed that right up to the point that a fetus is viable outside the womb, often set at around 24 weeks. But several conservative states, including Mississippi, have approved bans on abortion before that stage of pregnancy.   

Now the court will decide whether those bans are constitutional – an unexpected move that drew sharp reactions from both sides of the abortion debate.  

"Alarm bells are ringing loudly about the threat to reproductive rights," said Nancy Northup, president of the Center for Reproductive Rights, which is representing the abortion clinic in the case. "The Supreme Court just agreed to review an abortion ban that unquestionably violates nearly 50 years of Supreme Court precedent and is a test case to overturn Roe v. Wade."

Despite the addition in October of Associate Justice Amy Coney Barrett, which gives conservatives a 6-3 edge on the court, the justices took months to decide whether to take the case, potentially suggesting deep divisions on the nine-member bench. In its order Monday, the court limited the case to a single question: Whether pre-viability bans on abortion such as Mississippi's are constitutional. 

"This is a landmark opportunity for the Supreme Court to recognize the right of states to protect unborn children," said Marjorie Dannenfelser, president of the anti-abortion organization Susan B. Anthony List. "It is time for the Supreme Court to catch up to scientific reality and the resulting consensus of the American people as expressed in elections and policy."

Both sides noted the case will be heard at a time when states are ramping up the number and scope of abortion restrictions. Fifteen other states besides Mississippi have tried to ban abortions before viability but have been blocked in court, according to the Guttmacher Institute, which conducts research on abortion and reproductive health.

"I can say that over the last four years critical rights like the right to health care, the right to choose, have been under withering and extreme attack, including through draconian state laws," White House press secretary Jen Psaki said Monday in a response to a question about the court's decision to hear the case. "The president is committed to codifying Roe, regardless of the …outcome of this case."

Mississippi, one of a handful ofstates with only one abortion clinic left operating, argued that its ban – with exceptions for medical emergencies or fetal abnormalities – would not violate the broader right to abortion protected by Roe. Rather, the state justified its ban by asserting a fetus can feel pain after 15 weeks and that an abortion at that stage carries increased medical risks.

"The Mississippi Legislature enacted this law consistent with the will of its constituents to promote women's health and preserve the dignity and sanctity of life," Mississippi Attorney General Lynn Fitch, a Republican, said in a statement. "I remain committed to advocating for women and defending Mississippi’s legal right to protect the unborn."

Opponents said that pregnancies at 15 weeks are not viable, so abortions at that stage are permitted by court precedent.

"This is the moment anti-abortion politicians have been waiting for since Roe v. Wade was decided," said Jennifer Dalven, director of the reproductive freedom project at the American Civil Liberties Union. "If the Supreme Court rules in favor of Mississippi, it will take the decision about whether to have an abortion away from individuals and hand it over to politicians."

A federal district court in Mississippi struck down the state ban in 2018 and the New Orleans-based U.S. Court of Appeals for the 5th Circuit upheld that decision in 2019, finding that the law was "facially unconstitutional because it directly conflicts with" prior Supreme Court precedent. 

Both sides had been closely watching whether the court would take the case, attempting to parse meaning from the longer-than-usual delay. Some had speculated the court was eager to avoid taking up such a controversial case so soon after former President Donald Trump named three new justices to the bench.

Activists rally outside the Supreme Court on March 4, 2020, during oral arguments for an abortion-related case, June Medical Services v. Russo.

Despite optimism from anti-abortion groups about the court's more conservative posture, the justices have stymied abortion opponents twice in the past five years. In June, it struck down a Louisiana law requiring doctors who perform abortions to have admitting privileges at nearby hospitals. Chief Justice John Roberts cast the deciding vote.

More:Supreme Court's split decision for abortion rights gives opponents an unlikely boost

In 2016, the court reached a similar conclusion in a Texas case, with Associate Justice Anthony Kennedy joining the court's four liberal justices. Kennedy later retired and was succeeded by Associate Justice Brett Kavanaugh. Now Barrett has succeeded the late Associate Justice Ruth Bader Ginsburg, leader of the liberal bloc.

More:Barrett steers the Supreme Court to the right, but not toward President Trump

In the past several months the court has sought to disentangle itself from controversial issues left over from the Trump administration, including on questions about the 2020 election, immigration and other abortion issues. President Joe Biden's administration earlier this year requested the court dismiss a series of cases involving Trump's effort to cut federal funding for medical centers that refer patients for abortions.

A majority of the court on Monday agreed to dismiss the cases.

Contributing: Matthew Brown