How the Supreme Court Might End Nationwide Legal Abortion

Jacquelyn Martin/AP

For the first time in decades, the fundamental right to abortion is squarely being attacked in the Supreme Court. On Thursday, Mississippi filed a brief with the court directly asking it to overturn Roe v. Wade, the 1973 decision establishing a right to abortion.

This hasn’t happened since 1992, in the case of Planned Parenthood v. Casey, when Pennsylvania asked the court to overturn Roe. Since then, as any observer knows, the court has heard many abortion cases, but none has featured the main brief asking the court to upend its precedent in this way. Supplemental briefs written by other groups have certainly made the request in those cases, but having the main party in the case ask the court to do so is different.

The case here is Dobbs v. Jackson Women’s Health Organization. It involves a Mississippi law that bans abortion at 15 weeks of pregnancy. Until now in the case, lower federal courts, even the conservative ones that cover Mississippi, have struck the law down as unconstitutional. They’ve had no choice — the law clearly violates Supreme Court abortion precedent that requires states to allow abortion through viability, roughly 23 or 24 weeks of pregnancy. The Mississippi law, banning abortion roughly two months earlier, is flatly inconsistent with this precedent.

Which is why Mississippi, in filing its brief on July 22nd, really had no choice but to ask the court to overturn Roe. In its brief, the state called Roe v. Wade “egregiously wrong.” It wrote further: “The Constitution does not protect a right to abortion. The Constitution’s text says nothing about abortion. Nothing in the Constitution’s structure implies a right to abortion or prohibits states from restricting it.”

What makes this brief so significant is that the court rarely revisits precedent without explicitly being asked to do so by the parties in the case. Technically, the court could overturn old cases whenever it wants. There’s no rule stopping it from reconsidering what it has decided in the past just because the main parties in the case didn’t ask it to do so. However, history shows that it doesn’t like to do this without a direct request.

Mississippi made this request for two reasons. First, there’s almost no way for it to win the case without attacking Roe and the cases that have flowed from it. A ban at 15 weeks is so inconsistent with the viability measure that Mississippi had no other choice.

Second, the court has changed. Just last summer, the court struck down a Louisiana law that made it harder for clinics to provide abortions. That decision was 5-4, with the chief justice joining the court’s four liberals to declare the law unconstitutional. Since then, Justice Ruth Bader Ginsburg has passed away and been replaced by Justice Amy Coney Barrett. That switch is monumental, giving the court six staunch conservatives and making it the most conservative group of justices in a century. Mississippi is banking on at least five of those conservatives agreeing with its position that Roe needs to go.

Of course, just because Mississippi has asked for Roe to be overturned doesn’t mean it will be. The last remaining abortion clinic in Mississippi will file its response and fight this tooth and nail. But more important, enough justices may be hesitant to throw out the half-century-old precedent. In theory, the court sticks to precedent even when justices disagree with it, so some of the conservatives may feel the need to do so here as a way to preserve the institution of the court (even if they agree that Roe is a problem).

Also, the justices aren’t stupid. They know that roughly two-thirds of the country is opposed to overturning Roe. While the court certainly has the freedom to do unpopular things, there’s a school of thought that it never wants to go against public opinion too much, especially on such a high-profile issue. Doing so would thrust the court into a political quagmire that it might want to avoid, especially since justices usually want to appear above politics. And, thinking even more partisan, overturning Roe might have extremely negative repercussions for Republicans at the ballot box in 2022 (and 2024), something the conservative justices aren’t supposed to think about, but may.

If the court doesn’t heed Mississippi’s request to overturn Roe, it could still rule against the clinic and uphold the law. Doing so would be tricky because of how directly the law conflicts with past cases, but justices have threaded needles like this before. The conservatives on the court could whittle away at the right to abortion in this case while keeping Roe. Doing so would further cement the current reality on the ground that abortion is theoretically legal, but practically difficult to obtain, especially for those who are poor, rural, or people of color. In fact, many observers think this is the likely outcome here, as this route would give states more leeway on abortion without creating the political upheaval that overturning Roe would.

The case will be fully briefed by the fall, with oral argument soon after. We won’t know the result probably until next summer, as the court usually saves its most controversial cases for the end of June. Until then, everyone will be watching this case closely, as the stakes just got much higher.