The Supreme Court announced Monday that it will review one of its first reproductive rights cases since Justice Amy Coney Barrett was confirmed in October. Barrett’s addition gives conservative justices a 6-3 majority on a case that is a direct challenge to parts of the landmark Roe v. Wade case that created a constitutional right to abortion in 1973.
The case in question, Dobbs v. Jackson Women’s Health Organization, involves a Mississippi ban on abortion procedures after 15 weeks of pregnancy. The Supreme Court said it will review only one question: whether all bans on abortion are unconstitutional.
The justices refused to hear arguments on two other questions Mississippi wanted them to consider: Whether abortion providers have standing to challenge laws on behalf of their patients, and whether courts should scrutinize if an abortion restriction has any health and safety benefits.
The Supreme Court’s opinion on this case could have long-lasting effects on abortion laws in the U.S., and could make Minnesota one of the last places where abortion is legal in the upper Midwest.
What Roe established
Roe v. Wade originally divided pregnancy into trimesters, ruling that first-trimester abortions were absolutely protected from state law, and states were able to regulate but not ban second-trimester abortions. The medical information available to the Court in the early 1970s considered the third trimester to be the point at which a fetus became viable, or able to survive outside the womb, so the Court ruled that states could legally prohibit all abortions in the third trimester except where necessary to protect the mother’s life or health.
In 1992 the Supreme Court affirmed Roe v. Wade in a case called Planned Parenthood v. Casey, moving from the more outdated trimester rule to shift the focus onto when the fetus becomes medically viable, and reorienting the framework of abortion law around what regulations place an “undue burden” on a woman’s ability to obtain an abortion.
The Court said that a woman has the right to choose to have an abortion before viability and without undue interference from the State. The Court also ruled that before viability, the state’s interests “are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.”
On the state level, lawmakers have been passing legislation that restricts abortion since the Roe opinion. A number of states have passed “heartbeat bills” that protect the unborn from the moment they have a detectable heartbeat, usually around six weeks into pregnancy.
What happens if Mississippi wins?
The Supreme Court has yet to rule on the constitutionality of the “heartbeat bills,” but the law central to the Dobbs case is a little less extreme, banning abortions after 15 weeks except “in a medical emergency or in case of a severe fetal abnormality.” Fifteen weeks is more restrictive than current law, though: Roe v. Wade and Planned Parenthood v. Casey recognized Americans’ right to pre-viability abortions, which doctors currently consider to be abortions before 24-28 weeks.
Mississippi was one of several Republican-controlled states that in recent years passed bans on abortions early in pregnancy. Many of these bans were expected to be rejected in lower courts, but lawmakers hoped they would move up the appeals ladder to make it to the Supreme Court, where the conservative-majority justices could revisit the Roe decision.
“States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban,” Judge Patrick Higginbotham of the 5th U.S. Circuit Court of Appeals wrote in affirming a lower-court ruling that invalidated the law.
The Supreme Court had previously turned down state appeals over pre-viability abortion bans. If the Court upholds Mississippi’s law, it would be the first ratification of an abortion ban before the point of viability — when a fetus can survive outside the womb. This ruling could lay the groundwork for even stricter restrictions on abortion, including bans on abortion as early as six weeks.
If Mississippi wins, it will enforce its 15-week ban (which lower courts have prohibited, so far). But the immediate effect of the decision may not make huge waves because over 90 percent of abortions take place in the first 13 weeks of pregnancy, according to the U.S. Centers for Disease Control and Prevention.
Although this case involves a critical part of the Roe v. Wade decision, it would not completely overturn the historic ruling. But opponents of abortion are elated — and abortion rights advocates alarmed — that this ruling could undermine earlier Supreme Court rulings on abortion-related cases.
The Court’s conservative majority
President Donald Trump’s appointment of Barrett to the Supreme Court last fall after the death of Justice Ruth Bader Ginsburg created a 6-3 conservative super-majority in the Court. Barrett’s judicial record prior to joining the Court includes multiple votes in favor of restrictions on access to abortions.
Trump’s two other appointees, Justices Neil Gorsuch and Brett Kavanaugh, voted last year to allow Louisiana to enforce restrictions on doctors that could have closed two of the state’s three abortion clinics. Justice Clarence Thomas is on record in support of overturning Roe v. Wade.
“I don’t know what this Court is going to do, but the presence of Amy Coney Barrett makes me nervous,” said Erin Maye Quade, coalition director for Unrestrict Minnesota, a campaign that aims to educate Minnesotans about their rights and access to abortion care in the state. “They might actually intend to take up the constitutionality of legal abortion as a whole, and it seems like they have taken this [case] up to either overturn Roe or tee it up for other reasons.”
White House press secretary Jen Psaki said the Biden administration backs legislation that would write the Roe decision into federal law, regardless of the outcome of the Supreme Court case.
What could happen in Minnesota
Though Minnesota has many legal restrictions placed on abortion — like preventing advanced practice clinicians from performing abortion care and a 24-hour waiting period — it is one of the only states in the upper Midwest to have state constitutional protections for the procedure.
Currently, only eight clinics in Minnesota offer regular access to abortion care: five in the Twin Cities, one in Rochester, one in Duluth, and the mobile clinic called Just the Pill.
North Dakota, South Dakota and Wisconsin all have post- or pre- Roe v. Wade bans on abortion, meaning that if Roe is overturned, it would “trigger” a ban on abortions in those states. Iowa also has restrictive abortion laws, and in February 2020, its state Senate passed a constitutional amendment clarifying that there is no right to an abortion in the Iowa constitution. The amendment must now pass the House in 2021 or 2022 and a statewide vote before it becomes law.
People seeking abortions in surrounding states have already been traveling to Minnesota to seek care, Quade said, especially since the pandemic made it even more difficult for people to get in-person care, which is often necessary for abortions.
If the Court confirms the Dobbs case and rolls back more protections on abortion care, Minnesota could soon become the last bastion of abortion access in the upper Midwest, Quade said.
The Court will not hear this case until the fall of this year, and will likely not have a decision until the spring of 2022.