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Supreme Court will hear direct challenge to Roe v. Wade


While the court recently took another abortion-related case out of Kentucky, the justices during those arguments will focus on a procedural question rather than consider the constitutional right to terminate a pregnancy.

Key context: The case is an early test of whether the court’s new conservative majority will potentially overturn Roe v. Wade, the nearly 50-year-old ruling that bars states from banning abortion before a fetus is viable, which most medical experts believe to be around 24 weeks of pregnancy.

Mississippi was a part of a wave of Republican-leaning states that passed bans on abortion early in pregnancy in the past two years, knowing they would be rejected by lower courts — but hoping they would provide the Supreme Court with the opportunity to revisit the Roe decision.

The Mississippi ban included exceptions for medical emergencies or a “severe” fetal abnormality, but not cases of rape or incest. A federal judge blocked the Mississippi law shortly after its passage in 2018, and the 5th Circuit Court of Appeals — among the country’s most conservative appeal circuits — upheld that decision last year, citing the precedent set by Roe. Similar state laws, including a six-week ban Mississippi passed last year, have also been blocked by lower courts.

As the Senate wrapped confirmation hearings on Barrett in October, Mississippi’s attorney general asked the Supreme Court to review the state’s 15-week ban. The justices considered the case in a closed-door conference on Friday after they had pushed back review more than a dozen times since the fall.

Why it matters: The court in recent has largely shied away from abortion-related cases in recent years, to the frustration of some conservatives on the bench. Accepting the Mississippi case indicates they’re ready to reexamine Roe and other cases that could result in new curbs on the procedure. More than a dozen abortion-related cases are currently one step away Supreme Court review, including state bans on surgical abortion methods and bans based on certain reasons for terminating a pregnancy.

Justices Clarence Thomas and Samuel Alito have led their conservative colleagues in arguing for a rollback of abortion rights, and anti-abortion groups who backed Barrett’s nomination said they hope she will support overturning Roe.

Barrett is expected to provide a reliable vote for abortion restrictions, based on her brief tenure on the 7th Circuit Court of Appeals and her record as a law professor. While she sidestepped questions during her confirmation hearings about whether she would rule against Roe, she offered she does not consider the decision a “super-precedent” that the court could never overturn.


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