Supreme Court to Decide Whether States May Ban Abortions Before Viability

In Dobbs v. Jackson Women’s Health Organization the Supreme Court will decide whether “all pre-viability prohibitions on elective abortions are unconstitutional.”

Mississippi prohibits abortions, except in a medical emergency or in the case of a severe fetal abnormality, after 15 weeks gestational age. The Fifth Circuit affirmed the lower court’s decision to invalidate Mississippi’s law.

Mississippi concedes that a fetus isn’t viable at 15 weeks. In concluding the law is unconstitutional Fifth Circuit stated:  

In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban.

In its petition requesting the Court hear this case Mississippi asks the Court to reconsider its precedents which don’t consider the state’s interest “in protecting the infant’s life” before viability. According to Mississippi, “the viability rule was created outside the ordinary crucible of litigation, failed to take account of the state’s accepted interest in maternal health and fetal pain, is increasingly out of step with other areas of the law, rejects science and common sense, and is shaky precedent at best.”

The Fifth Circuit pointed out the Ninth Circuit invalidated a ban at 20 weeks; the Eighth Circuit invalidated bans at 6 and 12 weeks; and the Tenth Circuit invalidated a ban at 22 weeks.

An amicus brief filed by a number of states notes that multiple states prohibit abortions after 20 or 22 weeks. According to these states the ruling in this case “casts doubt on the lawfulness of any restriction on the right to abortion prior to 23 weeks.”

The only abortion clinic in Mississippi doesn’t preform abortions after 16 weeks. One of the clinic’s doctors testified that at least one woman a week seeks an abortion after 14 weeks and 6 days.