What to Know About the Abortion Case Set to Challenge Roe v. Wade

The U.S. Supreme Court. Photo: Drew Angerer/Getty Images

On December 1, the United States Supreme Court will hear oral arguments in a case widely assumed to pose a direct threat to abortion rights nationwide. In Dobbs v. Jackson Women’s Health Organization, lawyers for Mississippi seek to validate a statewide ban on the procedure after 15 weeks — undercutting the national standard Roe v. Wade set nearly 49 years ago. Roe protects abortion access up until at least viability, around 23 or 24 weeks into pregnancy, and longer in cases in which the patient’s life or health comes into question.

Mississippi attorneys have already proposed arguments challenging viability as a threshold and “undue burden” provisions outlined (and continually reaffirmed) in post-Roe rulings. They want the Court to reconsider “whether all pre-viability prohibitions on elective abortions are unconstitutional” either by overturning Roe or by revising its terms enough to let states set their own limitations — which many are all too eager to do.

Below, everything we know about the case, explained.

What is the law in question?

In March 2018, Mississippi governor Phil Bryant (who hopes “to end abortion” in the state) signed the Gestational Age Act, or House Bill 1510, into law. Among the country’s most restrictive policies at the time, HB 1510 banned the termination of most pregnancies after 15 weeks — five weeks earlier than the state’s already aggressive 20-week limit. Though the law made exceptions for life-threatening pregnancies and for fetuses with “severe … abnormalities,” it included no caveats for pregnancies resulting from rape or incest. (It had lots of language about “unborn human beings” and “medical, emotional, and psychological consequences” for women’s health, though.) It is also, notably, a direct limitation of the procedure based on gestational age, whereas more recent cases to reach the Supreme Court have dealt with laws attempting to shutter clinics by dictating the width of clinic corridors, for example, or mandating that doctors secure hospital-admitting privileges.

The new law met an immediate challenge from Jackson Women’s Health Organization — the state’s sole remaining clinic and a favorite target of anti-abortion activists — which sued the state with the Center for Reproductive Rights. In November 2018, a federal judge struck down the ban, ruling, “The record is clear: States may not ban abortions prior to viability” and describing “the Mississippi Legislature’s professed interest in ‘women’s health’” as “pure gaslighting.” Mississippi appealed the district court’s decision to the (very conservative) Fifth Circuit court, which upheld that ruling. The Supreme Court had continually affirmed the legality of abortion before viability, it said, and the lower courts could not go over its head. “States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right,” Judge Patrick Higginbotham wrote, “but they may not ban abortions.”

Mississippi then took its complaint all the way to the top, and in May of this year, the Supreme Court agreed to hear the case. Now it will reconsider decades-old precedent: viability.

What are the terms of Roe v. Wade?

Decided in 1973, the landmark decision established abortion as a legal right up until fetal viability, or the point when the fetus can survive outside the womb. Per Roe, states cannot outlaw abortion before viability, though in the second trimester, they can regulate the procedure if doing so might reasonably promote maternal health. After a fetus is deemed viable, the right to abortion is balanced against the interests of potential life; a patient can only terminate when continuing the pregnancy endangers their life or health. But medical advancements mean the viability line can move — and has: According to the New York Times, the threshold sat around 28 weeks when the Supreme Court ruled in Roe. Today, it may be closer to 23 weeks.

While abortion opponents have tried all kinds of work-arounds to limit access before that point — gestures toward pre-cardiac activity and medically unfounded complaints about fetal pain, which only occurs after viability — resetting the bar at 15 weeks feels arbitrary. There “is a point in time at which interests shift because there is a medical justification for intervention in a way that would be different before viability,” Drexel University law professor David S. Cohen told the New York Times. “If the Court were to go backward in time without overruling Roe and say 15 weeks is now the new cutoff, I’m not sure what basis there would be for that.” As Mississippi itself acknowledges, 15 weeks is far too early for a fetus to survive independently even with substantial medical intervention. At 22 weeks and with active treatment, the odds of survival remain slim.

Still, Roe is not the only Supreme Court precedent at issue here. Mississippi has also called into question Planned Parenthood v. Casey, a 1992 decision that introduced the concept of an “undue burden” on abortion access. In Casey, the Court ruled that states could not interfere with the “liberty” Roe established by placing “substantial obstacles” between patients and the procedure. The Court has continually upheld that decision — as a recent example, see 2016’s Whole Woman’s Health v. Hellerstedt, where it held that physical and administrative regulations Texas imposed on providers amounted to undue burdens; the Court reaffirmed that ruling in 2020. Still, Mississippi would like the justices to take another look.

What are the arguments in the case?

In its brief — riddled with medical fallacies and inaccuracies — Mississippi proposed a few mechanisms for upholding its ban. Its preferred avenue would be for the Court to overturn Roe and Casey outright because they are (in Mississippi’s estimation) “egregiously wrong”: The constitution does not say anything about abortion. If the Court is unwilling to overrule them, however, Mississippi suggests the justices could reinterpret the “undue burden” standard, allowing the state to “prohibit elective abortions before viability if it does not impose a substantial obstacle to ‘a significant number of women’ seeking abortions.” The brief notes that Jackson Women’s Health says it does “not perform abortions after 16 weeks’ gestation” — because of existing state-imposed restrictions — and that most abortions are performed in the first trimester anyway. Therefore, state attorneys claim, a 15-week cap would not seem to change the landscape much. Or the Court could simply acknowledge that “the State’s interests in protecting unborn life, women’s health, and the medical profession’s integrity are, at a minimum, compelling at 15 weeks’ gestation” and “leave for another day the question of what standard applies in the absence of a viability rule.” In other words, it does not need to do away with Roe wholesale, but it could erase the viability line to be redrawn eventually.

To be clear: Denying people access to abortion has only ever proved directly detrimental to their mental and physical health. As the brief from Jackson Women’s Health notes, “There are no half-measures here.” The clinic argues that, though the Constitution doesn’t touch on pregnancy, the right to abortion is wrapped up in the right to privacy (the foundation for Roe) and personal autonomy as subsequent decisions have repeatedly agreed. The brief continues, “Every version of the State’s argument amounts to the same thing: a request that the Court scuttle a half-century of precedent and invite states to ban abortion entirely.”

What are the odds of the Court ruling against Roe in some way?

The Court currently has a 6-3 conservative majority with a number of Trump-appointed justices seemingly antagonistic to Roe, so: worryingly high. True, it seemed skeptical of Texas’s vigilante-enforced six-week ban, which came up for the Court’s consideration November 1 and also involved Roe and Casey, but that incredulity is not a barometer of the justices’ allegiance to either case. They may not scrap Roe entirely, but they could certainly gut or curtail it to achieve the same effect. Our colleagues at Vox compiled a detailed rundown of the possible routes the Court might take, but going after Casey’s “undue burden” standard could be devastating: Consider the 106 restrictions statehouses had passed by October of this year, many of which use roundabout means to make the procedure as difficult to come by as possible. The implications of allowing states to introduce limitations on pre-viability abortion are self-evident. The Court could also cite medical developments to question the point at which viability occurs, giving individual states similarly wide latitude to make their own interpretations.

And what happens then?

Whatever avenue the Supreme Court opts to take, giving any kind of green light to a state seeking to impose medically unfounded restrictions on abortion would likely embolden others eager to do the same. It would also mean pregnant people in Mississippi have a far narrower window in which to access care, likely driving them into neighboring states where providers are already strained or obligating them to travel untenable distances to get an abortion. But if the Supreme Court were to overturn Roe full stop, termination would be explicitly or effectively outlawed in at least 21 states. To put that in perspective, abortion would be unavailable across roughly half the country.

What to Know About the Latest Challenge to Roe v. Wade