On Wednesday, the U.S. Supreme Court voted 5-4 not to intervene against a Texas law that forbids legal abortion after a fetus is determined to be six weeks old and allowed private citizens to sue anyone who attempted to aid a person in seeking an abortion after six weeks.
In what has been a fixed battle ever since the Supreme Court’s landmark Roe v. Wade decision in 1973, both sides of the debate instantly claimed the decision as the biggest abortion rights decision in almost 50 years.
But the real test is yet to come, and Mississippi will be front-and-center.
At the request of Mississippi Attorney General Lynn Fitch to strike down Roe v. Wade, the Supreme Court will take up a challenge to Mississippi’s abortion laws (a 15-week ban passed by the Legislature in 2018 and, then, a six-week ban passed in 2019). In announcing its decision Wednesday, the Supreme Court made a note of saying that its ruling was not an opinion on the legality of abortion, but did not intervene in Texas for procedural reasons.
The real answer will come in the Court’s next term.
What the Supreme Court will decide in Mississippi’s Dobbs vs. Jackson Women’s Health Organization is whether all pre-viability prohibitions on abortions are unconstitutional.
Viability was a key component of Roe v. Wade, seeking to strike a balance between the two sides of the debate.
Roe v. Wade established the viability standard, which said abortions were not legal once the fetus could survive outside the womb. To date, the youngest premature baby to have ever survived was born at 21 weeks. That remains an outlier, however. A baby born at 24 weeks has less than a 50-percent chance of survival.
To suggest, as some “pro-life” supports argue, that medical science has had any dramatic success in reducing the mortality rate among premature babies is not supported by any evidence.
Today’s ultra-conservative Court, perhaps realizing the futility of relying on the viability question to overturn Roe v. Wade, is poised to take viability out of the equation altogether, which means a woman’s right to choose may rely entirely on what state she resides in. Remember, a chief argument by anti-abortion advocates in Roe v. Wade was that states had a right to determine whether abortion is legal in their states.
In Roe v. Wade, the Supreme Court rejected that argument.
Now, almost 50 years later, the right to a legal abortion returns again to the state’s right argument, something that has been the conservative strategy for everything from school integration to gay marriage.
What the Texas ruling tells us is that this Supreme Court is going back in time — and a bad, bad time at that.
The last time we had a Supreme Court this conservative it ruled a Black person was only three-fifths human.
So the issue will be decided by a conservative Court framing the argument on the basis of state’s rights.
It seems only fitting that Mississippi would be right smack dab in the middle of that.
Slim Smith is a columnist and feature writer for The Dispatch. His email address is ssmith@cdispatch.com.
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