Fact file

The anti-abortion challenge to Roe v Wade explained

Joe Biden dragged into major new legal battle over landmark reproductive rights ruling

The highest court in the US has agreed to hear a case that marks the biggest challenge in a generation to the constitutional right to abortion established almost half a century ago.

The Supreme Court “will review a restrictive Mississippi law that provides a clear path to diminish” the Roe v. Wade judgment that gave women the right to terminate their pregnancies, The Washington Post reports. 

Mississippi is among a number of Republican-led states to have passed legislation that “conflicts with the court’s precedents protecting abortion rights”, the paper continues. And with that conflict now set to be examined the nation’s top lawmakers, pro-life campaigners have “urged the court’s conservatives to seize the chance to reexamine” the 1973 ruling.

Roe v. Wade

Passed during Richard Nixon’s term in the White House, the original Supreme Court judgment swept away a series of federal and state anti-abortion laws by establishing a woman's constitutional right to choose to have an abortion in the first three months of pregnancy.

The ruling was the result of a case revolving around Norma McCorvey - known in her lawsuit under the pseudonym “Jane Roe”. McCorvey was in her mid-20s when she sought a termination after becoming pregnant with her third child in 1969. But she lived in Texas, where abortion was illegal except when necessary to save the mother’s life.

Her case was taken to the Supreme Court, where justices ruled 7-2 that a woman’s right to terminate her pregnancy came under the freedom of personal choice in family matters, as protected by the US Constitution - a ruling that effectively legalised the procedure across the nation.

However, the “contentious” debate about the political, religious and moral issues surrounding abortion continued to rage in the ensuing decades, says The New York Times (NYT).

Anti-abortion activists are now hoping that the upcoming legal challenge to Row v. Wade will be used by the Supreme Court’s “newly expanded conservative majority” to “pare back the constitutional right to abortion”, the paper reports.

The hearing is the “first substantial abortion case to be heard by the court after its conservative majority increased to 6-3”, adds The Times. The paper notes that Donald Trump appointee Amy Coney Barrett, who replaced the late Ruth Bader Ginsburg on the bench last year, “campaigned against abortion earlier in her career”.

New challenge

Accepting the case, the Supreme Court said it would examine whether “all pre-viability prohibitions on elective abortions are unconstitutional” - an announcement that “sounded ominous to abortion rights advocates”, says The Washington Post.

Alexis McGill Johnson, president of the Planned Parenthood Action Fund, tweeted that “anti-abortion politicians have exploited their power for this exact moment - the opportunity for the newly comprised Supreme Court to take away our right to abortion”.

Nancy Northup, president of the Center for Reproductive Rights, has also warned that “alarm bells are ringing loudly about the threat to reproductive rights”, adding: “The Supreme Court just agreed to review an abortion ban that unquestionably violates nearly 50 years of Supreme Court precedent.”

The case was brought in the name of Thomas Dobbs, the state health officer for Mississippi, where state law bans abortions after 15 weeks except in in cases of medical emergency or severe foetal abnormality.

Anti-abortion activists argue that the more restrictive legislation is “necessary to protect foetal life” and have “expressed confidence that it would be judged constitutional by the Supreme Court”, the NYT reports.

“The Mississippi Legislature enacted this law consistent with the will of its constituents to promote women’s health and preserve the dignity and sanctity of life,” Lynn Fitch, the state’s Republican attorney general, said in a statement. “I remain committed to advocating for women and defending Mississippi’s legal right to protect the unborn.”

Pro-choice activists fear that if the Supreme Court upholds that proclaimed right, “a dozen states would rush to enact similar measures and also pass tighter controls to test if the justices would move further to erode the Roe v. Wade standard”, says The Times.

Battle for Biden

White House Press Secretary Jen Psaki told reporters on Monday that the administration was “committed to codifying” Roe v. Wade. But she declined to comment on “how such legislation could get through an almost evenly divided Congress”, Politico reports.

The Supreme Court’s decision to hear the case has dragged Biden into “a fight he didn’t want” that “will loom large heading into the mid-term election” next year, the site continues. Pro-abortion campaigners are calling on the president to deliver on a campaign vow to “champion federal bills that would enshrine Roe’s protections in federal law”.

Biden may face significant resistance from his leading lawmakers, however. According to Politico, “legal experts and advocates on both sides of the issue expect the justices to chip away at - if not completely overturn - Roe, noting that the court could have simply turned away the Mississippi case and the central question of whether states can ban abortion early in pregnancy if it wanted to let precedent stand”.

As speculation grows about the likely outcome of the hearing, the NYT reports that court “will hear the case in their next term”, with a decision likely to be delivered “in the spring or early summer next year” - just as “the 2022 midterm elections are gearing up”.

“The stakes of the case ensure that the abortion debate will remain a political flash point, rallying conservative and liberals alike,” the paper adds.

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