Part of a continuing series examining the U.S. Supreme Court case Dobbs v. Jackson Women’s Health Organization, a direct challenge to the 1973 decision in Roe v. Wade that legalized abortion throughout the United States.
After nearly a half century of legal abortion throughout the United States, that precedent could fall — or stand — through one critical case now before the U.S. Supreme Court. Yet what makes it possibly the most significant abortion case in decades?
The Supreme Court on Dec. 1 will hear arguments in the case of Dobbs v. Jackson Women’s Health Organization, concerning Mississippi’s ban on most abortions after 15 weeks. The court will take up the question of whether all bans on pre-viability abortions are unconstitutional.
Legal experts say the case presents an ideal opportunity for the Supreme Court to reconsider previous rulings that upheld legal abortion nationwide.
The 1973 Supreme Court ruling that legalized abortion nationwide, Roe v. Wade, said that states could not ban abortion before the “viability” of the fetus — the point at which unborn child can survive outside the womb, determined by the court to be around 24 to 28 weeks into pregnancy.
Nearly 20 years later, the court upheld that ruling in Planned Parenthood v. Casey, saying that states could regulate pre-viability abortions but could not pose an “undue burden” in doing so.
Mississippi’s law bans most abortions after 15 weeks — well before the point of “viability” as established in Roe and upheld in Casey.
“The Dobbs case presents a square challenge to Roe v. Wade,” said Michael Stokes Paulsen, a law professor at the University of St. Thomas in Minnesota, in an email interview with CNA.
“So, Mississippi’s law forbids abortions that Roe and Casey say must be permitted,” Paulsen said. “There’s no way around the conflict between the Mississippi law and the court’s precedents on abortion. One or the other has to go!”
Steve Aden, chief legal officer and general legal counsel for Americans United for Life, agreed that Roe itself is at the heart of the Dobbs case.
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