Does this mean the 6-3 conservative majority wants to test out its power? Or does the Supreme Court’s grant of certiorari already signal a limited approach to abortion? The decision to hear arguments in a key fetal-pain case might be a bit of both:
The Supreme Court on Monday agreed to take up a major abortion case next term concerning a controversial Mississippi law that banned most abortions after 15 weeks, rekindling a potentially major challenge to Roe v. Wade at the majority conservative court.
Mississippi’s 15-week abortion ban, which then-Gov. Phil Bryant, a Republican, signed into law in 2018, made exceptions only for medical emergencies or cases in which there is a “severe fetal abnormality,” but not for instances of rape or incest. A federal judge in Mississippi struck down the law in November 2018, and the 5th US Circuit Court of Appeals upheld that ruling in December 2019.
After being rescheduled for the court’s consideration in conference over a dozen times, the case could present a direct challenge to Roe v. Wade, the 1973 landmark Supreme Court decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.
At least four of the justices wanted to review the appellate decision that struck down the law. That does indicate an interest in tweaking the jurisprudence around abortion restrictions, but in which direction and to what extent? The appellants wanted the court to address three questions, but they only accepted the first. Our friend Gabriel Malor calls this question “meh,” and notes that the second question is much more provocative:
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
Technically speaking, the court has already allowed some restrictions on abortion to stand, so the answer to the first question is already more or less known … unless the court wants to restate Casey to forbid all such restrictions. The real issue, as Gabriel points out, is the second question — which parallels the question of scrutiny. Should courts apply strict scrutiny to restrictions on abortion rights (Casey) or intermediate scrutiny (Hellerstedt)? The issue of fetal pain, on which this new law is based, could argue for a Hellerstedt balancing of interests rather than the Casey precedent, which arguably eclipses Roe in guarding against restrictions other than the most basic.
The court’s refusal to take up the second question makes the prospects for sweeping change very limited, and perhaps not in the direction that pro-life advocates would prefer. If that was all the court had in mind, though, they could have just refused to grant cert. It takes four justices to accept an appeal, so clearly at least one of the conservatives on the bench wanted a crack at it.
In any event, this looks like at best an opportunity for some incremental change to the jurisprudence on abortion restrictions. That doesn’t mean there won’t be grand opportunities for full freak-outs over the conservative SCOTUS majority. Invest heavily in handmaid-costume manufacturers for the next few months.