Conservatives eye Supreme Court delay in accepting abortion case
WASHINGTON — The future of Roe v. Wade is being fought out in an unusual dispute within the Supreme Court.
At issue is whether to take up a direct challenge to the landmark abortion decision, an early test for the court with three appointees of President Donald Trump.
Conservatives who have long targeted Roe believed they had won a historic victory a week before Trump lost his reelection bid. Justice Amy Coney Barrett took her seat at the end of October, giving the court six conservatives who had been appointed by Republican presidents who opposed abortion. The death of Justice Ruth Bader Ginsburg left just three liberals who supported abortion rights.
The justices have before them an appeal from Mississippi that has become the focus of attention. The state seeks to enforce a ban on nearly all abortions after 15 weeks of a pregnancy, but the measure was blocked by a federal judge and the U.S. appeals court on the grounds it conflicted with Roe.
The state’s lawyers are urging the high court to repeal the “bright-line viability rule” set in 1973 which lets women choose abortion until about the 22nd week of pregnancy, the time when a fetus is capable of living on its own. Instead, they said, states should be given more leeway to ban abortions at earlier stages of a pregnancy.
More than a dozen Republican-led states are ready to implement measures to ban many or nearly all abortions if the Supreme Court were to change course.
If the justices — or at least four of them — vote to take up Dobbs v. Jackson Women’s Health Organization, it would be by far the most significant abortion case in 30 years. A decision has been pending for months, and the case is due to come up again Thursday during the justices’ private conference.
Granting review in the Mississippi case would signal the new conservative majority is ready to make a major change in the law. However, if the court were to turn down the appeal, it would send the opposite message, that the new court will stick to its precedents, defying predictions from the right and left.
Conservative legal analyst Ed Whelan called the Dobbs case “the best opportunity the Supreme Court will ever have to overturn Roe.” The case “provides an excellent vehicle for overruling” the right to abortion and returning the issue to the state legislatures, he wrote in November.