Just What We Need: SCOTUS May Take Up a Direct Challenge to Roe v. Wade in the Coming Days

Just What We Need: SCOTUS May Take Up a Direct Challenge to Roe v. Wade in the Coming Days
Photo:Olivier Douliery/AFP (Getty Images)

Need a break from being anxious about the election? Here’s something else to be anxious about: As soon as Friday, the Supreme Court could decide to take up a Mississippi abortion case that puts Roe v. Wade right in its crosshairs.

The law seeks to ban abortion at 15 weeks in direct defiance of the 1973 landmark decision, which says that states can’t ban abortion before fetal viability. That makes the law, passed in 2018, blatantly unconstitutional, and it’s why lower courts have blocked it from going into effect.

But just a week after Amy Coney Barrett’s confirmation, Republican officials in the state see an opportunity to appeal the decision all the way to the top, giving the newly minted 6-3 court an opportunity to undermine or overturn Roe.

Should the court agree to rule on the case and use it as a vehicle for gutting federal abortion rights, it will be the culmination of one of the anti-abortion movement’s most popular strategies. For decades, Republican state lawmakers have passed a variety of restrictions on abortion—from waiting periods to ultrasound requirements to gestational limits—with the intent of eroding the foundation of Roe v. Wade and paving the way for a future conservative-leaning court to overturn it completely.

Under Trump, anti-abortion legislators deployed this strategy with renewed urgency: They bombarded the lower court system with increasingly extreme abortion laws, hoping that by the time the legislation wound its way up to the Supreme Court, Trump would have appointed and confirmed a new justice.

Still, there’s some uncertainty about what the court will do. Conventional wisdom says that if Supreme Court justices do decide to rule on Roe v. Wade, they’re more likely to take up a slightly more subtle case and use it to render Roe effectively meaningless rather than overturning it outright. And the way justices choose cases remains opaque: Earlier this year, the Supreme Court heard a Louisiana abortion case that was identical to the Texas abortion case they ruled on in 2016.

Though a ruling to end federal abortion rights would be devastating, the existence of Roe is almost entirely beside the point for Mississippi residents. There’s just one remaining abortion clinic in the state, which is home to some of the most stringent abortion restrictions in the country. For women of color, low-income people, and people who live in rural parts of the state, the end of Roe is now.

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