Throughout the last decade, many states have crafted abortion bans to test Roe v. Wade, the 1973 landmark Supreme Court decision that guaranteed a person’s right to an abortion. But the biggest threat to Roe now sits before the high court: Mississippi’s 2018 law, which bars abortions after 15 weeks, with narrow exceptions for medical emergencies or “severe” fetal abnormalities. In May, the Supreme Court agreed to review the law by taking up the case Dobbs v. Jackson Women’s Health Organization. It will hear arguments in the case on Dec. 1, and a decision is expected next June.
Some states have passed less extreme bans, which bar abortions after 20 weeks of pregnancy. In recent years, states like Texas opted for more aggressive prohibitions, making abortion illegal after six weeks. Few were crafted like Mississippi’s law, which occupies a less crowded middle ground.
But legal experts say the specificity of Mississippi’s 15-week ban is what makes it such a threat to abortion rights — it challenges both Roe’s “viability standard,” as well as the “undue burden” guidelines set by the 1992 landmark case Casey v. Planned Parenthood.
The viability standard and 15 weeks
When the Supreme Court decided to take on Dobbs, the justices clearly wanted to rethink the viability standard established in Roe v. Wade, said Mary Ziegler, a professor of law at Florida State University who focuses on reproductive rights. Supreme Court precedent protects a person’s constitutional right to abortion before a fetus can survive outside of the womb, usually around 22 to 24 weeks. Before that point, states can’t implement any restrictions that present an “undue burden” for someone seeking an abortion. A total ban before viability at 15 weeks, like the one in Mississippi, would undermine Roe.
Fifteen-week bans are rare. Just one other state, Louisiana, has tried to pass one. More states have passed bans at 20 and 22 weeks, which stem from a claim by antiabortion organizations that 20 weeks is when a fetus starts to feel pain. According to the American College of Obstetricians and Gynecologists, “the fetus does not even have the physiological capacity to perceive pain until at least 24 weeks of gestation.”
Viability is an “easy weakness to target,” Ziegler said. Historically, she added, there’s never been a great explanation for why viability was the line after which abortion was no longer protected.
For Denise Harle, co-director for the Center for Life at the Alliance Defending Freedom, a conservative Christian advocacy group, the Mississippi ban accounts for medical developments in fetal care. “Viability is an arbitrary moving target,” Harle said. “One of the very serious constitutional problems with Roe and Casey is that it drew a line that not only moves as every year passes … but is different in every single pregnancy.”
Dobbs does not argue that a fetus at 15 weeks can survive outside of the womb. But, Harle said, “we don’t know in 10 or 20 years from now whether that [would be] true.”
Since 1973, there has been a shift in when a fetus is considered viable, but not by much. ACOG defines birth before a fetus is viable as 20 weeks to 25 weeks. Doctors say that because of important developmental issues (underdeveloped lungs, for example), it’s unlikely viability could be lowered much more than 22 weeks.
To take on the viability standard, Ziegler said, it made sense for the Supreme Court to consider an abortion ban less extreme than a six-week “heartbeat bill” like the one that took effect almost three months ago in Texas. Polls show that earlier bans are less popular. They could lead to “political fallout” for justices concerned with protecting the court’s reputation as a politically neutral institution, Ziegler said.
The justices may have seen 15 weeks as a compromise, she said. The only abortion clinic in Mississippi performs abortions up to 16 weeks, so antiabortion advocates may suggest that the one-week difference is inconsequential — and therefore does not constitute an “undue burden.”
What does an ‘undue burden’ mean?
Laurie Bertram Roberts, co-founder of the Mississippi Reproductive Freedom Fund, sees a lot of similarities between Dobbs and Casey v. Planned Parenthood, the 1992 case that established the “undue burden” standard, stating that abortion restrictions could be legal as long as there is no “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
Casey “didn’t end abortion access, but it led us here,” said Bertram Roberts: with only one clinic providing abortions for an entire state.
Elizabeth Sepper, a law professor at the University of Texas at Austin School of Law, doesn’t see the Mississippi law as particularly unique — except for the way its previous abortion restrictions have shaped its ban. In the last 30 years, the state passed series of regulations, such as requiring multiple appointments and waiting periods for an abortion, as well as rigid guidelines for clinics, that led to the shutdown all its abortion clinics, except one.
Because its only abortion clinic only provides abortions until the 16-week mark, the ban would, in practice, shorten abortion access by one week, she explained.
“This seems to target specifically this idea of being an ‘undue burden,’ ” Sepper said.
Harle said the Alliance Defending Freedom is “frequently asked” to weigh in on legislation like Mississippi’s abortion ban, and she confirmed that the group had advised state lawmakers crafting the law. She said that the group has given “input” on Dobbs, too. While Harle did not say that the 15-week ban was pegged to the state’s lone abortion clinic’s current 16-week limit, she did argue that the court needed to “better define” what an undue burden means.
“That’s the lingering problem that would haunt us if the court weren’t to do the clean thing and completely overturn Roe and Casey,” she said.
The changing landscape of abortion restrictions
While a 15-week abortion ban may have seemed extreme five years ago — it wasn’t until 2019 that many states attempted to enact “fetal heartbeat” bills — the bill now looks more reasonable in comparison to those six-week bans, according to Melissa Murray, a law professor at the New York University School of Law.
“Suddenly, the 15-week ban in Mississippi starts looking like a moderate compromise measure,” Murray said. “The Overton window on what is and is not reasonable in terms of state abortion regulations has really shifted considerably in a very short period of time.”
So, too, has Mississippi’s own approach to Dobbs, she added. When the state filed its first petition in 2020, it asked for the high court to revisit viability and its precedents — “they were very modest in their request of the court.”
This followed a larger national strategy targeting abortion rights, not by overturning Roe outright, but by closing clinics down so that abortions are harder to access, Murray said.
But after Justice Ruth Bader Ginsburg’s death in 2020, that changed. The state became much more aggressive this year, explicitly asking the court to overturn Roe and Casey with its case.
Could Dobbs overturn Roe?
There is disagreement among legal scholars about which case, and which kind of ban, could overturn Roe. Murray considers it more likely that a “reasons” ban — one that prevents people from getting an abortion due to a fetal anomaly, or the race or sex of the baby — would be the conservative court’s “preferred vehicle” to overturn Roe.
But Sepper, the University of Texas law professor, thinks the most likely scenario is that Dobbs will be used to overturn Roe.
Under current doctrine, it doesn’t actually matter how nominal the difference in time is, she said: simply by being a ban, it qualifies as an undue burden.
For Mississippi’s law to stand, then, the court would need to “radically change abortion doctrine,” Sepper said.
“I think any decision in favor of Mississippi overturns Roe v. Wade, regardless of what the court says.”