Arguments begin at 10 a.m. ET.
What is the Mississippi law in question?
Prohibits most abortions after 15 weeks of pregnancy, a rule that violates Roe v. Wade. It is one of several laws passed in several states for the purpose of getting the Supreme Court to hear a direct challenge to Roe.
The U.S. 5th Circuit Court of Appeals, perhaps the most conservative appellate court in the country, blocked the law, saying it violated the precedent of Roe and the Supreme Court. Mississippi appealed to the Supreme Court, which agreed last spring to hear the case.
What does Roe say?
Roe guaranteed women’s right to have a nationwide abortion, using a quarterly approach.
During the first trimester of pregnancy, the court said the abortion decision should be left to the woman and her doctor; during the second trimester, a state could regulate the abortion procedure in ways reasonably related to a woman’s health; during the last trimester, after fetal viability, the state could promote its “important and legitimate interest in potential life” and prohibit abortion except when necessary for a woman’s life or health.
What is Casey?
In 1992, the court, which was asked to reconsider Roe, abandoned the quarterly approach but maintained the standard of viability, though it shortened it from about 28 weeks to about 23 weeks.
He said the new rule should be about whether a regulation places an “undue burden” on a woman requesting an abortion. This sentence has since been litigated.
What about Texas? SCOTUS not just heard of an abortion case?
SCOTUS observers anticipated that judges would quickly hear the Texas case to rule before enacting Mississippi law, but that has not happened.
Texas law has a new enforcement mechanism that allows people to sue abortion providers or others who help women who have abortions after six weeks, instead of asking state officials to enforce it. A legal mess has been created as the law was designed to prevent a pre-emptive challenge, but the court is still considering who has permission to sue and to whom the lawsuits should be addressed.
What if Roe flips over
Current Texas law could now be considered a model for a post-Roe world where abortions are limited or banned in certain states or regions.
Abortion clinics as far away from the state as Florida have reported that women in Texas have traveled there to have abortions, and if Roe were to cancel, there would be a large part of the country where abortions are illegal because states could ban them.
Who is arguing on each side
Mississippi Attorney General Scott Stewart, a former secretary to Judge Clarence Thomas, will be the first.
Stewart is likely to emphasize a main point he argued in the writings: “Under Roe and Casey, the Judiciary mows state laws after state laws, year after year, on a critical political issue. This is dangerously corrosive to our constitutional system.” .
He will be followed by Julie Rikelman, senior director of the Center for Reproductive Rights, arguing on behalf of the Jackson Women’s Health Organization, the state’s latest abortion clinic.
In March 2020, Rikelman won a case overturning a Louisiana abortion law when court president John Roberts sided with the Liberals in court. That, however, was before the court makeup changed with the death of Judge Ruth Bader Ginsburg and the confirmation of Amy Coney Barrett.
After Rikelman, Attorney General Elizabeth Prelogar, a former Ginsburg secretary and Judge Elena Kagan, will support the clinic.
Prelogar, the chief lawyer for the Biden administration before the Supreme Court, said in legal documents that judges should consider what would happen if he decided to return the issue to the states. “The effects are likely to be felt more sharply by young women, women of color and those with fewer resources, further diminishing their opportunities to participate fully and on equal terms in the social and economic life of the Nation,” he said.
As Mississippi took on the challenge, Stewart will have a chance to get back on the podium.
The arguments are expected to last 70 minutes, but if the past is precedent, the court will move on to the extension.
Which judges are key?
When the judges agreed to hear the case last May after months of closed-door deliberations, the question they agreed to decide was whether “all prohibitions on the predictability of elective abortion are unconstitutional.”
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