Those among you who are gamblers by nature are going to be remarkably tempted to place a wager on the future of abortion in the United States, in light of the Supreme Court’s decision on Monday to review a Mississippi case on this critically important issue.
The Court has agreed to revisit the most fundamental of abortion questions – whether states can ban abortions before a fetus can survive outside the womb. The Mississippi case involves whether the state’s ban on the vast majority of abortions after 15 weeks of pregnancy is constitutional. In accepting this case, the Court will reconsider both Planned Parenthood v. Casey as well as Roe v. Wade.
The first thing to keep in mind is that while the Supreme Court agreed to hear the case, it is going to be for the 2021-2022 term. This begins in October and as of the writing of this piece, the Court has now agreed to hear 17 cases during next year’s term. So while this is going to be a massive case, it is something that both lobbyists and pundits can get very agitated about for at least the next six months before the action begins. Realistically, it will be 10-12 months from today until we have a decision in this case.
No pun intended, but case in point: the Supreme Court has been grappling internally for eight months as to whether or not they should even hear this case. Well the past 24 months have seen an onslaught of anti-abortion legislation in many states throughout the nation, this case could have filtered up to the Supreme Court for the current term, not next year‘s term.
It’s also important to note that our collective focus should not be on the fact that this case is about abortions beyond 15 weeks, but rather how restrictive the exceptions are going to be. The reason the Court finally chose this case of the test case is that the Mississippi law in issue bans almost all abortions after 15 weeks. What is important about the 15 week period is that it is recognized as being well before a fetus is actually viable.
In this case, The United States Court of Appeals for the Fifth Circuit (it should not be a huge surprise that the 5th Cir. is arguably the most conservative in the country) blocked enforcement of the law, finding it in conflict with Roe v. Wade and the body of abortion decisions that followed.
The talking heads on TV are going to consider the fact that the Court has agreed to hear this case as a huge boon to the anti-abortion movement. But just hearing this case is no guarantee that the law of the land regarding abortion rights is definitely going to be changed.
Back to you gamblers. Please save your money. The one thing this court has shown us in its first months of formation is that it is far less predictable than any of us believed it would be.
Sure, we are looking at a 6-3 conservative majority on the Court, but that’s where what we actually know about this unpredictable court begins and ends. All we really know here is that there have been close to nine months of internal machinations within the court, the end result of which is that this case is going to be heard by the highest court in the land.
Nancianne Aydelotte, a partner at the law firm Aydelotte & Scardella Law LLC, points out the fundamental issue the Court has been grappling with:
“Lawyers and judges see Roe v. Wade in one of three ways today: It’s not ripe for review, it’s ripe for review, or it’s over-ripe for review. The entire nation will be watching closely as the Court begins their process with what could be a history-changing Mississippi case.”
While it’s true that Roe v. Wade is two years from its 50th anniversary, it just doesn’t resonate with some observers that this incarnation of the Supreme Court is actually going to overturn Roe, though to many it seems to be a sure thing. The Supreme Court has previously turned down state appeals over pre-viability abortion bans so one should wonder what it is about this case that attracted them. Was it actually something about the facts of the case itself or is this issue, both societally and judicially, simply (over)ripe for review?
Only the Court knows at this point. In what could be a truly action-packed 2021-2022 calendar for the Supreme Court, this could be the most resonant and memorable of all the cases.