Court to Take Up Challenge to Right to Abortion, Roe v. Wade

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court agreed to hear a case challenging Mississippi's ban on abortions after 15 weeks of pregnancy, except in cases of medical emergencies or severe fetal abnormality. The case, Dobbs v. Jackson Women's Health Organization, threatens the fundamental right to an abortion under Roe and Casey.

That's because with the addition of Justice Barrett (replacing Justice Ginsburg), there are now six solid votes against the fundamental right to an abortion. This counts Chief Justice Roberts, who only begrudgingly voted to overturn state restrictions on abortion last Term in June Medical. Chief Justice Roberts joined the four progressives in that case, but wrote separately to base his vote on stare decisis, and the Court's 2016 decision in Hellerstedt, a case with virtually identical facts. There's no guarantee that he'd vote to uphold or defer to Roe and Casey in the same way. Even if he did, though, there'd still be five likely votes to overturn Roe.

Still, the case gives the Court some room to sharply curtail the right to abortion without necessarily overturning Roe.

The QP is whether all pre-viability prohibitions on elective abortions are unconstitutional. Here's the cert. petition; here's the Court's docket.