On Monday morning, the Supreme Court announced that it would review a Mississippi law that would ban almost all abortions after 15 weeks. The case, Dobbs v. Jackson Women’s Health Organization, is an unprecedented “direct challenge” to Roe v. Wade, according to advocates on both sides of the issue. It marks the first time the Supreme Court has decided to hear a case on an abortion ban since its landmark 1973 abortion ruling, and the first case that will be heard by the court’s new 6-3 conservative majority.
Passed in 2018, the Mississippi law hinges on the question of “gestational viability” — the ability for a fetus to survive outside of the womb. At the time the bill was signed into law, it was the most restrictive ban in the nation. Since then, Mississippi has passed a bill banning all abortions after six weeks, as have a number of other states, including Alabama, Georgia, Missouri and North Dakota.
The different timelines reflect different rationales for how to limit abortions. While the 15-week bans are ostensibly based on viability, as well as the health of the birth parent, six-week bans are centered on when the fetus has its first heartbeat.
They are all attempts at undermining Roe, abortion rights advocates say. And while all of the six-week bans have been blocked by lower courts, Mississippi remains the only state in the country to have a ban barring abortion before 20 weeks.
In a call with reporters Monday afternoon, Nancy Northup, president and chief executive of the Center for Reproductive Rights, said the court could not uphold the Mississippi law without “overturning the principle of Roe v. Wade.”
This is because the issue of viability is central to Roe and in later decisions, with the Supreme Court repeatedly finding that states cannot ban abortion before the fetus can survive outside the womb. Medical researchers have pegged viability to 24 to 28 weeks.
“The court has previously refused, again and again to review these kinds of laws because they are clearly unconstitutional and in violation of 50 years of precedent,” Northup said.
That the court would even take up the case, after two lower courts ruled against the ban, suggests that justices want to reevaluate a central tenet of Roe.
“It’s like a shot in the back to women,” said Shannon Brewer, clinic director at the Jackson Women’s Health Organization. “We watch our patients, every day, going through so much to even have access to abortion, to even get to the facility.”
Antiabortion groups cheered the review. To allow abortions after 15 weeks is “extreme,” said Sarah Zarr, southern regional manager for the antiabortion group Students for Life, who does work in Mississippi. People in Mississippi don’t want people to access late-term abortions in their state, she said, and instead are eager to “take care of each other and take care of pre-born lives.” She is hopeful the Supreme Court will allow the state to enact abortion laws that reflect the values of its citizens.
Marjorie Dannenfelser, president of the antiabortion group the Susan B. Anthony List, called this a “landmark opportunity for the Supreme Court to recognize the right of states to protect unborn children from the horrors of painful late-term abortions.”
Abortion rights advocates, however, were unanimous in their alarm at the Supreme Court’s decision to hear the case, which they see as a crucial step toward dismantling Roe v. Wade.
“This is not a drill,” said Elizabeth Nash, who analyzes state policy for the Guttmacher Institute, a nonprofit research center that supports abortion rights. In an analysis from April, the Guttmacher Institute found that 2021 was on pace to be the worst year for abortion access in decades. Since January, 146 abortion bans have been introduced across 46 states. Eight of them have passed, with an additional 61 restrictions to abortion access enacted in 13 different states.
“Make no mistake: the purpose of any abortion ban — including this 15-week ban in Mississippi — is to snowball into an outright ban on all abortion at any point in pregnancy and for any reason,” Nash said.
On Monday morning, when Lindsey Lee read that the Supreme Court had agreed to take the case, she said she wasn’t surprised. A 40-year-old stay-at-home mom who has spent her whole life in Mississippi, Lee says she can’t remember a time when abortion wasn’t under attack in her state. Antiabortion legislators and protesters have long seemed determined to shutter the Jackson Women’s Health Organization, the state’s last remaining clinic, she said, a pink building constantly surrounded by protesters. They line up with bullhorns and boomboxes, she said, yelling at abortion patients as they walk inside.
If the Supreme Court upholds the 15-week ban, Lee said, she fears the decision will embolden antiabortion advocates in Mississippi and across the country, encouraging them to enact bans that limit abortion even further.
“If it’s 15 weeks, then why not 12 weeks?” Lee said. “Why not make it illegal altogether?”
Legislators in states like Mississippi would immediately push for more limited bans, including six-week “heartbeat bills” and bills that ban all abortions, said Laurie Bertram Roberts, executive director of the Yellowhammer Fund, an abortion fund that serves Mississippi and other states in the Southeast.
“The floodgates will open,” they said. “You will be able to chip away past 15 weeks. The whole framework of Roe will be gone.”
While the current Mississippi law bans abortions after 20 weeks, except in cases with a fatal fetal anomaly or when a mother’s health is at risk, Jackson Women’s Health Organization only offers the procedure up to 16 weeks. In practice, the 15-week ban would only cut off one week of abortion care in Mississippi, said Bertram Roberts — but just that one week alone will prevent some women from accessing care.
Brewer said roughly 10 percent of all their patients get an abortion past the 15-week mark.
Especially in a low-income, antiabortion state like Mississippi, this will be “one more barrier for people who already have all these barriers in their way,” Bertram Roberts said. Many women struggle to pay for their abortions, with the Hyde Amendment and state legislation preventing them from tapping into any government funds. Distance is also a problem, they said, especially for low-income women who live hours from Jackson.
Northrup said that Black women would be particularly impacted if the Supreme Court upholds the ruling, noting that “the majority of people obtaining abortion care in the state are Black.”
Supporters of the 15-week Mississippi abortion ban say the goal of the bans is to mitigate harm to women. Paul Barnes, a special assistant to the attorney general in 2018, argued to the Clarion Ledger that health risks associated with abortions “increase exponentially” as pregnancies progress.
Daniel Grossman, a San Francisco-based obstetrician gynecologist who conducts public health and clinical research on abortion care, disputed this claim.
“The medical evidence does not support this kind of ban,” Grossman said.
Grossman, who spoke out against the Mississippi ban in 2018, said that the evidence was “quite clear” that abortion performed at any point in pregnancy is very safe, and safer than carrying a pregnancy to term in some cases. This was true, he said, even in abortions after 18 weeks, though there is a “slightly higher risk of complications” compared to first-trimester abortion.
He also said that research from the American College of Obstetricians and Gynecologists, as well as the Royal College of Obstetricians and Gynecologists in the United Kingdom, found “there is not evidence that fetuses can feel pain before the third trimester.”
Grossman is primarily worried about what would happen to patients if they’re denied access to abortions later in their pregnancy. While the Mississippi bill does allow for medical exceptions, he’s concerned that, in practice, these exceptions will be hard to get.
“Often there are delays before that determination is made or there can be confusion about who is responsible for making that determination. And ultimately, patients can suffer because of those delays,” he said.
Right now, when Mississippi abortion patients pass the 16-week mark, they have to leave the state, said Bertram Roberts. They’ll go to a handful of other clinics in nearby states — maybe in Alabama, Arkansas or Florida. But if the Supreme Court upholds Dobbs v. Jackson Women’s Health, they added, it won’t be long before abortion access is cut off in those states, too.
When it comes to abortion care, they said, “the whole South could be a blackout.”
Correction: An earlier version of this article misspelled Lindsey Lee’s name. It has been corrected.