Why US abortion law could be changed by Supreme Court decision

The US Supreme Court is about to hear the most important abortion case in a generation.

On Wednesday, it will consider a Mississippi law asking the court to ban abortions after 15 weeks of pregnancy.

A final ruling, due in June next year, could cut abortion services for tens of millions of women.

Women’s right to abortion was established in 1973, following a Supreme Court ruling in a case known as Roe v Wade.

The decision granted American women the absolute right to an abortion during the first trimester of pregnancy and limited the right to the second trimester.

Nearly two decades later, the court made another important decision.

In Planned Parenthood v Casey, the court ruled that states could not place an “undue burden” on women seeking abortions before the viability of the fetus.

In the US, this threshold for when a fetus can sustain life outside the uterus has been set at around 23 or 24 weeks.

A state law was passed in Mississippi in 2018, according to which most abortions are illegal after the first 15 weeks of pregnancy – including those resulting from rape or incest.

It was not enforced due to a legal challenge by Mississippi’s sole abortion provider, the Jackson Women’s Health Foundation.

The US Supreme Court is currently reviewing the case.

Mississippi is demanding the overturn of Roe v Wade, and with it the constitutional right to abortion in the US.

If successful, states would be welcome to introduce their own standards on abortion – including outright bans on the viability of the fetus.

Nearly two dozen states are expected to introduce their own bans, some perhaps more severe than Mississippi.

In a legal brief filed this summer, Mississippi Attorney General Lynn Fitch — who will defend the state’s laws — said that removing Roe would effectively return discretion on the bankruptcy. pregnancy for the American people and their elected officials.

“The matter should be returned to the United States and its people,” she wrote. Ms Fitch did not return the BBC’s request for comment.

There are three possible outcomes next summer:

The first option is a distinct possibility. The court, reshaped by three appointments under former President Donald Trump, has been called the most conservatively inclined court in modern American history.

“There has been a 50-year campaign to get around Roe v Wade and there are certainly enough members of the court to do so,” said Katherine Franke, director of the center for gender and sexuality law at Columbia University. .

But she believes total repeal is unlikely. Instead, the court could uphold the Mississippi law while upholding both Roe and Casey.

However, attorneys for the Jackson Women’s Health Foundation have said such a decision is tantamount to cutting out the court’s past abortion rulings, because it would override the viability standard. in the fetus.

That could happen in 22 states, including Mississippi.

Twelve have passed so-called trigger laws, which automatically ban abortion if Roe is overruled.

Others have either passed a ban on unconstitutional abortion in the years since Roe v Wade (to be resurrected), or retained pre-Roe, unenforceable abortion restrictions.

According to research by Planned Parenthood, a healthcare organization that provides abortion services, nearly half of U.S. women of childbearing age (18-49) — about 36 million — could lose access to abortions. near abortion.

In more than half of US states, access to abortion is likely to stay the same.

In 15 states and the District of Columbia, state law guarantees abortion rights even if Roe v Wade is overturned.

Leaving open access to abortion will most strongly affect poor women who were most likely to seek an abortion in the first place.

Black and Latina women are most likely to be affected – 61% of abortion patients are from an ethnic minority.

“The typical abortion patient is in their 20s, doesn’t have a lot of money and has one or more children,” said Rachel Jones, principal investigator at the Guttmacher Institute, a pro-choice group.

“These are the groups that will be most affected when restrictions on abortion are put in place or ban abortion.”

Although Roe v Wade gave American women a guaranteed right to abortion, for millions of people it was a nominal right.

In the decades since 1973, anti-abortion regulations have gradually prevented re-access in more than a dozen states.

In 2021 alone, nearly 600 regulations restricting abortion were enacted nationwide, of which 90 were enacted into law. That number is more than in any year since Roe.

And abortion has long been out of reach for many low-income women.

Since 1976, a law known as the Hyde Amendment has prevented the use of federal funding for the procedure.

Women are often forced to pay for abortions themselves, which can cost hundreds of dollars.