The Supreme Court on Monday announced it will take up its first abortion case since Justice Amy Coney Barrett’s confirmation gave the court a 6-3 conservative majority. Many legal scholars and analysts believe the ruling on the challenge to a struck-down Mississippi law that seeks to ban nearly all abortions after the 15th week of pregnancy could significantly affect Roe v. Wade.
Legal historian Mary Ziegler and others argue Roe doesn’t necessarily have to be overturned outright for the Supreme Court’s decision to alter the landscape. Instead, tinkering with it and allowing some pre-fetal-viability bans, like the Mississippi law, will pave the way for dismissing precedent. “If not viability, what is the limit on bans?,” Ziegler tweeted. “IS there a limit on bans?”
Mary (who you should follow if you don’t already) is absolutely right here.
The key to this case is that the conservatives can take a *huge* bite out of Roe *without* “overruling” it—just by allowing states to move the line before which Casey applies from viability to 15 weeks. https://t.co/kVYXhK4rti
— Steve Vladeck (@steve_vladeck) May 17, 2021
Not everyone is so sure this spells doom for Roe‘s central components, though. Attorney Gabriel Malor actually thinks the fact that the justices will rule only on whether “all previability prohibitions on elective abortions are unconstitutional” suggests the case might not be as crucial as it seems. Malor thinks the answer to that question is obvious (of course they aren’t all unconstitutional, he writes), while a more important question presented in the challenge won’t even be taken up.
Interesting that they only accepted question 1, which has an obvious easy answer. (Of course not *all* previability prohibitions are unconstitutional.)
They *didn’t* take up the much more important second question about whether Casey’s standard survived Whole Woman’s Health. pic.twitter.com/SR7F8kZ15I
— Gabriel Malor (@gabrielmalor) May 17, 2021
Meanwhile, Drexel University law professor David Cohen writes that no one can confidently predict how the court will rule, pointing out that an 8-1 conservative court was widely expected to overturn Roe when ruling on Planned Parenthood v. Casey in 1992, but ultimately did not.