WASHINGTON — The Supreme Court agreed Monday to a showdown over abortion in a case that could dramatically alter nearly 50 years of rulings on abortion rights.
With three justices appointed by President Donald Trump part of a 6-3 conservative majority, the court is taking on a case about whether states can ban abortions before a fetus can survive outside the womb.
Mississippi, which is asking to be allowed to enforce an abortion ban after 15 weeks of pregnancy, is not asking the court to overrule the 1973 Roe v. Wade decision confirming a woman’s right to an abortion, or a decision 19 years later that reaffirmed it.
But abortion rights supporters said the case is a clear threat to abortion rights. “The court cannot uphold this law without overturning the principal protections of Roe v. Wade,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a call with reporters.
Even if the court does not explicitly overrule earlier cases, a decision favorable to the state could lay the groundwork for allowing even more restrictions on abortion, including state bans on abortion once a fetal heartbeat is detected, as early as six weeks.
The case probably will be argued in the fall, with a decision likely in the spring of 2022 during the campaign for congressional midterm elections.
Mississippi’s ban had been blocked by lower courts as inconsistent with Supreme Court precedent that protects a woman’s right to obtain an abortion before the fetus can survive outside her womb.
“States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban,” Judge Patrick Higginbotham of the 5th U.S. Circuit Court of Appeals wrote in affirming a lower-court ruling that invalidated the law.
More than 90% of abortions take place in the first 13 weeks of a woman’s pregnancy, according to the Centers for Disease Control and Prevention.
John Bursch, vice president of the anti-abortion Alliance Defending Freedom, said the high court has repeatedly held that states can regulate abortions later in pregnancy.
Viability “has never been a legitimate way to determine a developing infant’s dignity or to decide anybody’s legal existence,” Bursch said.
The justices had put off action on the case for several months. Justice Ruth Bader Ginsburg, an abortion rights proponent, died just before the court’s new term began in October. Her replacement, Justice Amy Coney Barrett, is the most open opponent of abortion rights to join the court in decades.
Barrett is one of three Trump appointees on the Supreme Court. The other two, Justices Neil Gorsuch and Brett Kavanaugh, voted in dissent last year to allow Louisiana to enforce restrictions on doctors that could have closed two of the state’s three abortion clinics.