Supreme Court Considers Mississippi Abortion Law

Supreme Court Considers Mississippi Abortion Law

Legal Sidebari

Supreme Court Considers Mississippi
Abortion Law
December 13, 2021
On December 1, 2021, the U.S. Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health
Organization, a case involving the constitutionality of Mississippi’s Gestational Age Act (GAA), which
generally prohibits an abortion once a fetus’s gestational age is greater than 15 weeks. In Roe v. Wade and
Planned Parenthood of Southeastern Pennsylvania v. Casey, two of the Court’s seminal abortion
decisions, the Court recognized viability, the point in a fetus’s development when it is potentially able to
live outside of the mother’s womb, as the earliest time at which a state may prohibit the performance of
an abortion. In Roe and Casey, the Court recognized viability as occurring at around 23 to 24 weeks.
Mississippi’s Solicitor General argued that the GAA should be upheld despite Supreme Court precedent
restricting abortion prohibitions before fetal viability. The state contended that Roe and Casey were
wrongly decided and maintained that the GAA furthers valid state interests in protecting the “unborn”
and women’s health.
Background
In 1973, the Supreme Court concluded in Roe that the U.S. Constitution protects a woman’s decision to
terminate her pregnancy. Justice Blackmun, writing for himself and six other Justices, determined that a
right of privacy derived from the Fourteenth Amendment’s concept of personal liberty under the Due
Process Clause and recognized by the Court in prior decisions, was “broad enough to encompass a
woman’s decision whether or not to terminate her pregnancy.” The decision in Roe followed several
Court decisions describing a right of privacy that extended to activities related to marriage, procreation,
contraception, family relationships, child rearing, and education.
While the Court in Roe recognized a woman’s constitutionally protected right to terminate a pregnancy, it
also determined that the right had to be weighed against a state’s important interests in promoting
maternal health and protecting potential life. The Court held that the state’s interests become sufficiently
compelling to allow regulation of the abortion procedure at certain points during pregnancy, and
established the so-called “trimester framework” to examine such regulations. Finding that an abortion is
no more dangerous to maternal health than childbirth in the first trimester of pregnancy, the Court
concluded that the compelling point for regulating abortion to further a state’s interest in maternal health
was at approximately the end of the first trimester—that is, at about 12 weeks. Until that point, the Court
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determined that a decision to have an abortion and its effectuation were to be left exclusively to the
medical judgment of the pregnant woman’s doctor in consultation with the patient. The Court further
articulated that, after the end of the first trimester, the state could promote its interest in maternal health
by regulating the abortion procedure in ways reasonably related to maternal health. The Court further held
that the compelling point with respect to the state’s other interest (i.e., in potential life) was at viability,
and only after that point could a state regulate and even proscribe the procedure, except when necessary to
preserve the life or health of the mother. The Court reasoned that the state’s interest is compelling at this
point “because the fetus then presumably has the capability of meaningful life outside the mother’s
womb” and that restrictions protecting fetal life after viability “ha[ve] both logical and biological
justifications.”
In 1992, the Court reconsidered how abortion regulations would be evaluated. In Casey, a plurality of the
Court rejected Roe’s reliance on a trimester framework, explaining that “in its formulation [the
framework] misconceives the pregnant woman’s interest . . . and in practice it undervalues the State’s
interest in potential life[.]” In its place, the plurality adopted a standard under which an abortion
regulation would be invalidated if it imposed an undue burden; that is, if it “ha[d] the purpose or effect of
placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” The Court
reasoned that the new undue burden standard better reconciled the government’s interest in potential life
with a woman’s right to decide to terminate her pregnancy. While Roe generally restricted the regulation
of abortion during the first trimester, Casey emphasized that not all of the burdens imposed by an abortion
regulation were likely to be undue.
In adopting the new undue burden standard, Casey nonetheless reaffirmed the “essential holding” of Roe,
which the Court described as having three parts. First, a woman has a right to choose to have an abortion
prior to viability without undue interference from the state. Before viability, the Court explained, the
state’s interests “are not strong enough to support a prohibition of abortion or the imposition of a
substantial obstacle to the woman’s effective right to elect the procedure.” Second, the state has a right to
restrict abortions after viability so long as the regulation provides an exception for pregnancies that
endanger a woman’s life or health. Third, the state has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the fetus.
Although the Court’s recent abortion decisions have explored how the undue burden standard should be
applied, the Court has consistently emphasized Roe’s essential holding with regard to prohibitions on pre-
viability abortions. For example, in Gonzales v. Carhart, a 2007 decision involving the federal Partial-
Birth Abortion Ban Act, the Court maintained that “[b]efore viability, a State ‘may not prohibit any
woman from making the ultimate decision to terminate her pregnancy.’”
Dobbs v. Jackson Women’s Health Organization
Shortly after Mississippi enacted the GAA, abortion provider Jackson Women’s Health Organization
(JWHO) and its medical director challenged the law as inconsistent with Roe and Casey. Mississippi
argued that by only regulating abortion and providing exceptions for life-endangering medical
emergencies and certain other conditions, the GAA did not place an undue burden on a woman’s right to
terminate her pregnancy.
In 2018, the U.S. District Court for the Southern District of Mississippi permanently enjoined the GAA.
The court rejected Mississippi’s attempt to characterize the GAA as an abortion regulation rather than a
prohibition on the procedure. The court indicated that the undue burden standard is inapplicable when a
state seeks to prohibit the performance of pre-viability abortions. Emphasizing the Act’s full title—“An
Act to be Known As the Gestational Age Act; To Prohibit Abortions After 15 Weeks’ Gestation”—the
court observed: “This Act is a ban. It is not a regulation.” Citing Casey, the court maintained that “[t]here
is no legitimate state interest strong enough, prior to viability, to justify a ban on abortions.”

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On appeal to the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit), Mississippi contended that the
district court should have applied the undue burden standard to the GAA and that the law should have
been upheld under that standard. The state characterized the GAA as only regulating the time period
during which an abortion could be performed and not a prohibition on the procedure. The state
maintained that “the Act is not a ban because it allows abortions before 15 weeks, . . . it contains
exceptions, and, practically speaking, it only limits the relevant time frame by one week, since the Clinic
(the only abortion provider in Mississippi) does not perform abortions after 16 weeks . . . .” Mississippi
also argued that the district court should have considered the state’s interests in maternal health, potential
life, and those in the medical profession when evaluating the GAA, as the Supreme Court had done in
Gonzales.
In 2019, the Fifth Circuit affirmed the district court’s decision. Like the district court, the Fifth Circuit
viewed the GAA as a ban on pre-viability abortions and not a regulation of the procedure. Thus, the
appellate court distinguished the case from Gonzales and other cases involving the regulation of pre-
viability abortions: “[T]he State asks us to extend the undue-burden analysis past Casey’s clear
demarcation. That the Act does not ban all abortions, but only those after 15 weeks . . . does not change
the fact that viability is the critical point.”
The Supreme Court agreed to review the Fifth Circuit’s decision in May 2021. The question before the
Court in Dobbs is whether all pre-viability prohibitions on elective abortions are unconstitutional. During
oral argument before the Court, Mississippi contended that the heightened level of judicial review
prescribed by Roe and Casey for abortion restrictions is inappropriate because neither the Constitution’s
text nor its structure guarantees a right to abortion. The state believes that abortion restrictions should
instead be subject to “rational basis” review, a lower level of judicial scrutiny that applies when a
constitutional right is not at stake. Rational basis review evaluates whether a law is rationally related to
legitimate government interests. At oral argument, Mississippi’s Solicitor General observed that “no
standard other than the rational basis review that applies to all laws will promote an administrable,
workable, practicable, consistent jurisprudence that . . . puts matters back with the people. I think
anything heightened here is going to be problematic.”
The state further argued for Roe and Casey to be overruled because, in its view, the decisions have proved
unworkable and there have been relevant factual developments since the cases were decided. According
to the state, for example, medical and scientific advances have eroded the Court’s past assumptions about
viability. In its brief for the Court, Mississippi indicated that these advances show that a fetus “has taken
on the human form in all relevant respects by 12 weeks’ gestation.” The state further noted that our
knowledge of when a fetus becomes sensitive to pain has “progressed considerably.” The state maintained
that Roe and Casey impede the government from responding to this information by prohibiting pre-
viability abortions.
JWHO argued against the Court overruling Roe and Casey. The organization contended that these
decisions correctly recognized a right to terminate a pregnancy and a viability standard for efforts to
prohibit abortions. At oral argument, JWHO noted that Mississippi’s arguments against Roe and a
viability standard were similar to ones made by the State of Pennsylvania in Casey. The organization
observed that the Court carefully considered those arguments before reaffirming Roe’s essential holding
in Casey, and that there have been no legal or factual changes since Casey that justify a change in
position. In response to Mississippi’s argument about the unworkability of the undue burden standard, in
particular, JWHO emphasized that the standard applies to abortion regulations and not pre-viability
abortion prohibitions, and that federal courts have uniformly and predictably applied the viability standard
since Roe was decided. JWHO further highlighted that pre-viability abortion bans like the GAA have
generally been invalidated by federal appellate courts.
At oral argument, the Solicitor General of the United States also advocated against overruling Roe and
Casey. Noting the substantial individual and societal reliance on the right to abortion, the Solicitor

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General maintained that the Court “has never revoked a right that is so fundamental to so many
Americans and so central to their ability to participate fully and equally in society.”
Considerations for Congress
The Supreme Court is not expected to issue a decision in Dobbs until early summer 2022. If the Court
concludes that pre-viability abortion prohibitions are permissible, it seems possible that there could be
greater support for federal legislation similar to the GAA. Federal legislation could potentially supersede
varying state requirements and create a uniform national standard. Bills like the GAA were passed by the
House of Representatives during the 113th, 114th, and 115th Congresses. The Pain-Capable Unborn Child
Protection Act (PCUCPA), introduced as H.R. 1080 and S. 61 in the 117th Congress, would generally
prohibit the performance or attempted performance of an abortion once the probable post-fertilization age
of the fetus is 20 weeks or greater. The PCUCPA states that it would further a “compelling governmental
interest in protecting the lives of unborn children from the stage at which substantial medical evidence
indicates that they are capable of feeling pain.”
Conversely, if the Court were to overrule Roe and Casey, determining that the Constitution does not
guarantee a right to abortion, those who support such a right might promote legislation that would
establish a statutory right to access to the procedure. The Women’s Health Protection Act (WHPA),
introduced as H.R. 3755 and S. 1975 in the 117th Congress, would provide such a right and preempt state
restrictions on the procedure. The House passed H.R. 3755 on September 24, 2021. The bill is awaiting
further consideration in the Senate. Additional information on the WHPA is included in CRS Report
Abortion: Judicial History and Legislative Response.

Author Information

Jon O. Shimabukuro

Legislative Attorney

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