Abortion bans ‘certain’ in states across America if Supreme Court overturns Roe v Wade

The Supreme Court ruling on Mississippi’s abortion ban could gut reproductive rights across the US – and impact other liberties, too.

In 2018, Mississippi lawmakers introduced a ban on most abortions after 15 weeks. The day after the ban was signed into law the state’s sole remaining abortion clinic, Jackson Women’s Health Organization, launched a legal challenge against it. A federal judge ruled that the law was unconstitutional, striking it down, and the state took its case to the Fifth Circuit appeals court where the previous ruling was upheld.

The case, Dobbs v Jackson Women’s Health Organization, is now with the Supreme Court. Its nine justices have been asked to reinstate the ban, and in doing so, overturn the landmark Roe v Wade decision that forms the bedrock of abortion rights in the US.

Anti-abortion groups have suggested the move is part of a long-term plan to gut reproductive rights up and down the US. Alliance Defending Freedom senior counsel Denise Burke remarked just after the Mississipi ban was introduced that it was intended to “bait” pro-choice campaigners. The hope was that arguments for and against then ban would eventually be heard by the Supreme Court – which, thanks to Donald Trump, has a conservative majority.

What is Roe v Wade?

Roe v Wade was a 1973 case brought against the state of Texas, which alleged that contemporary local legislation forbidding abortion except where necessary to save the mother’s life was unconstitutional. The decision to rule in favour of Jane Roe (Norma McCorvey, who took an alias at the time) legalised women’s freedom to have an abortion.

The decision struck down anti-abortion laws in various states across the country. It’s this ruling which anti-abortion conservatives seek to overturn in their current legal battle.

The case is often referred to as a “super precedent” case, given that the Supreme Court has repeatedly reaffirmed its ruling in the years which followed. Since being established in 1789, the Supreme Court has reversed its own constitutional precedents in 0.5 per cent of cases. However, conservatives currently have a six to three majority of justices in the Court, leading to fears that Roe v Wade could be overturned.

Mississipi is also looking for the courts to overrule the Planned Parenthood v Casey decision, in 1992, which prevents states from banning termination before the point of viability (a foetus is only viable outside of the womb when a pregnancy has reached around 24 weeks).

What could it mean for the future of reproductive rights in the US?

Reproductive rights are already facing attacks across the US.

In Texas, the recent law known as Senate Bill 8 allows private citizens to sue those who help others get an abortion after around six weeks of pregnancy. If such a lawsuit is successful, plaintiffs get at least $10,000 in damages.

After a legal challenge, the Supreme Court in December 2021 allowed the law to stand. However, it also stated that abortion providers have the right to challenge the law in federal court. Such providers have asked the Supreme Court to compel the Fifth Circuit – which previously ruled in favour of the law – to return it to a lower court which previously ruled in their favour.

Should Roe v Wade be overturned, the impact would be far-reaching: about one in four American women will have an abortion before they are 45, according to analysis by the Guttmacher Institute, published in the American Journal of Public Health.

The Institute believes that if the court overturns or weakens Roe v Wade, 21 states are “certain to attempt to ban abortion as quickly as possible”, owing to laws or constitutional amendments currently in place, including Ohio, Georgia, Michigan and Tennessee.

It also predicts that another five states “have political composition, history and other indicators—such as recent actions to limit access to abortion—that show they are likely to ban abortion as soon as possible without federal protections in place”: Florida, Indiana, Montana, Nebraska and Wyoming.

Sarah Warbelow, legal director at Human Rights Campaign, speaking on the Mississippi case, said that overturning Roe v Wade would leave marginalised groups such as LGBT+ women, transgender men and non-binary individuals “most vulnerable”.

“The Supreme Court must take swift action to overturn this dangerous, unconstitutional state law that robs people of their right to make personal, informed healthcare decisions for themselves and their families,” said Warbelow.

“We are hopeful that the Court will honour the precedent set by Roe v Wade — enshrining abortion access as a constitutional right. Every day that this discriminatory law remains in effect there are thousands of people in Mississippi who are being denied safe, quality access to reproductive care and it is the most marginalised that are the most vulnerable, including LGBTQ+ women, transgender men and non-binary individuals.”

The Mississipi case could have an even wider impact

Constitutional experts have argued that these cases pose a danger not to reproductive rights, but to the rights of marginalised groups across the US.

Abortion rights rely on the Supreme Court’s interpretation of the fifth and 14th amendments of the US constitution.

Both amendments guarantee that no one shall be “deprived of life, liberty, or property, without due process of law”. According to the court’s interpretation, the right to privacy falls under “liberty”, and therefore so does the right to an abortion.

But other rights relating to bodily autonomy, including contraception and same-sex marriage, also rest on this interpretation, and are classed as “due process rights”.

From gay rights to interracial marriage, these rights “are imperiled because they’re all rooted in that right to privacy”, Melissa Murray, law professor at New York University law school and expert in constitutional, family and reproductive rights law, told The Guardian.

“All of this has been implied because they’re understood to be core, basic human rights,” said Murray. “You don’t need the state to recognise them because they are vested in you by virtue of being a human.”

Both the Texas and the Mississippi cases also mark a change in attitudes towards the American legislature. The states’ decisions to institute their abortion bans fly in the case of the Supreme Court’s status and power, which legally supercedes that of individual states. 

During the oral hearing in December, Justice Sonia Sotomayor said: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”