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  • The Supreme Court heard arguments in a pivotal case that could effectively overturn Roe v. Wade.
  • The case involves whether Mississippi’s ban on abortion after 15 weeks is legal.
  • Previous similar laws have been overturned by the Supreme Court.

The U.S. Supreme Court heard oral arguments Dec. 1 over Mississippi’s 15-week ban on nearly all abortions with few exceptions for medical emergencies or pregnancies with a severe fetal abnormality.

The law — named the Gestational Age Act or H.B. 1510 — was passed in 2018.

Jackson Women’s Health Organization, the only remaining licensed abortion care provider in the state, quickly challenged the law, claiming it was unconstitutional under Roe v. Wade and Planned Parenthood v. Casey two court rulings that protect people’s right to get an abortion before fetal viability.

The case — Dobbs v. Jackson Women’s Health Organization — will essentially force the justices to decide whether Roe and Casey should remain in place or be undone.

Fetal viability — or when a fetus can survive outside the womb — and the definition of “undue burden” — a crucial ruling in place under Casey — were at the center of debate during the oral arguments.

“There were no major surprises — it has long been clear where the battle lines are drawn among the justices. Most of today’s argument centered on whether the key abortion-rights precedents, Roe v. Wade and Planned Parenthood v. Casey, should be overruled or kept intact,” Jessie Hill, JD, a constitutional law professor at Case Western Reserve University, told Healthline.

The oral arguments opened with Mississippi claiming that Roe and Casey had failed and directly asking the court to overrule Roe and Casey.

Mississippi’s solicitor general said that if the cases are not overturned, the state will hope for a clarified version of “undue burden” that discards any language about fetal viability.

Mississippi’s solicitor general argued that fetal viability is not based on science but legislative language and that Roe is a controversial case — even though two-thirds of the country supports Roe.

The nine justices — with a 6 to 3 conservative majority — took turns asking questions about the case, demonstrating where they stand on the future of abortion care.

According to Nicholas Creel, PhD, an assistant professor of business law at Georgia College and State University who specializes in constitutional law, there are three liberal justices who will vote to uphold Roe(Justices Sonia Sotomayor, Elena Kagan, and Stephen G. Breyer), three conservative justices who are eager to reverse Roe(Justices Clarence Thomas, Amy Coney Barrett, and Samuel Alito), and three justices who could, in theory, go either way (Chief Justice John Roberts and Justices Neil Gorsuch and Brett Kavanaugh).

Two of these three “swing” justices would need to vote to uphold Roe to keep it intact, but this seems unlikely following today’s oral arguments, says Creel.

“Many members of the court showed that they’re out of touch with the lives of my patients and people who need abortion care all over the country. They failed to grasp the reality of how banning abortion impacts people’s health, livelihoods, families, and futures,” said Dr. Jody Steinauer, director of the Bixby Center for Global Reproductive Health at UCSF.

Sotomayor, a supporter of abortion rights, said overturning precedent would injure the legitimacy of the Supreme Court.

Sotomayor also said that questioning viability, or when a fetus’s life begins, is a religious viewpoint.

Kagan said Roe and Casey give women the freedom and autonomy to make decisions about their bodies, and there doesn’t appear to be a strong justification behind Mississippi’s hope to discard the viability language.

“As to those three swing justices, what we saw in the oral arguments today portends a landmark ruling that will absolutely restrict abortion access without eliminating it entirely,” Creel said.

Kavanaugh argued that if the Mississippi 15-week ban prevails, abortion will remain legal in other states. It would be left up to the states to enact abortion regulations rather than the constitution.

Roberts suggested a compromise in which the court would continue to protect people’s right to have an abortion but remove the protection of having one before fetal viability around 24 weeks.

“Given that this standard is often seen as the central holding of those cases, his discomfort with it definitely gives one the sense that he would vote to overturn it,” Creel said.

Mississippi’s stance repeatedly came back to the belief that overturning Roe — so that a right to an abortion would not be protected by the constitution — will give the power back to the people.

“Chief Justice Roberts was trying to find a middle ground between those two options [upholding or overturning Roe and Casey], but there didn’t seem to be much appetite among the other justices for Roberts’ approach. Overall, I’m extremely pessimistic about the future of abortion rights after this argument,” Hill said.

Roe, which was passed in 1973, protects people’s right to abortion. It also introduced different guidelines for each trimester — states cannot interfere with a person’s decision to have an abortion in the first trimester, states can only make reasonable health regulations during the second trimester, and states can ban abortion during the third trimester.

Under Casey, the trimester framework was replaced by a new standard that states cannot ban abortion before fetal viability, which occurs around 24 weeks of pregnancy.

Casey allows states to restrict abortion at any point in pregnancy, as long as the regulation does not cause “undue burden” or a “substantial obstacle” on a person’s ability to access an abortion before fetal viability.

The Mississippi law bans most abortions outright at 15 weeks, with no exception for rape or incest.

Though these cases protect people’s right to have an abortion, they have fallen short as states — such as Texas and Mississippi — have been able to pass highly restrictive abortion laws.

“The protections of Roe already fall short, leaving abortion out of reach for so many — especially people of color and those with low incomes. Gutting those limited protections would be devastating,” said Steinauer.

If the Supreme Court decides to flip Roe, states would be able to outlaw abortion.

“With 26 states poised to ban abortion, the ripple effects of this case could be enormous,” said Steinauer.

During the arguments, the justices questioned whether overturning Roe and Casey could lead to other precedents being overturned — like birth control, sodomy, and marriage equality.

The justices who do not support abortion said a decision regarding this case would not impact the right to birth control or marriage equality.

But the justices who support abortion rights say overturning precedent would damage the court’s legitimacy and put other precedents at risk.

The court is adjourned until Dec. 6. A decision on the case is expected by June or July 2022.

The U.S. Supreme Court heard oral arguments Dec. 1 over Dobbs v. Jackson Women’s Health Organization, a consequential case that could overturn the right to seek an abortion in the United States. With a 6 to 3 conservative majority, the court appeared unlikely to vote to uphold Roe but instead vote for a compromise that would undo the previous court ruling but still protect people’s right to abortion. A decision is expected by next summer.