SCOTUS to PROMPTLY consider whether to hear a Roe v. Wade challenge

Updated October 31, 2020

Consideration of Mississippi case rescheduled

The court had previously been scheduled to discuss on Friday a challenge to a Mississippi ban on abortion after 15 weeks of pregnancy, but that petition has been rescheduled and will be discussed at some future conference. Read more.

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Amy Coney Barrett sworn in by Justice Clarence Thomas, 10-26-20 - photo credit: whitehouse.gov

Only hours after the Senate Judiciary Committee voted to approve ACB’s nomination, Mississippi’s Attorney General petitioned SCOTUS to review the state’s 15-week abortion ban. The AG, Lynn Fitch, had initially asked for this review last June.

This time she referenced the high court’s summer 2020 decision on June Medical Services v. Russo that favored abortion providers as it ruled that doctors need no admitting privileges with a hospital. Though it disappointed pro-lifers, the decision has since been cited in other appeals, quoting Justice Roberts’ opinion, and helping to uphold legislation such as Ky’s Transfer Agreement Law.

Roberts wrote that lawmakers have wide discretion “in areas where there is medical and scientific uncertainty” and that weighing the “costs and benefits of an abortion regulation” was not necessarily a job for the courts. The Circuit Judge for the Ky case, Joan Larsen, ruled that states must step in to regulate clinics where a need for safety is discovered.

So, Ky’s TA case helped to promote the need for clarification by SCOTUS on certain issues. For example: Which legal precedent should be applied to protection of the woman’s health?

Ky AG Daniel Cameron signed an Amicus Brief last summer in support of the Mississippi case, questioning: “Whether an abortion law is necessarily unconstitutional, regardless of the State’s interest or the actual burden on women, when it theoretically could prevent a small number of women from obtaining a previability abortion.” Viability is a Roe v. Wade stumper.

The Mississippi Free Press reported on Wed., Oct. 27 (2020):

Mississippi’s 15-week abortion ban could soon make its way to the U.S. Supreme Court, with the court set to decide whether to hear it on Friday. The court announced plans to consider hearing the case yesterday evening—just as the U.S. Senate voted on a party-line basis to confirm President Donald Trump’s third pick to the high court, Amy Coney Barrett.

Lower courts in 2018 and 2020 found the Mississippi law unconstitutional under the precedent Roe v. Wade set in 1973. In court filings, though, Mississippi Attorney General Lynn Fitch is asking the nation’s high court to revisit and overturn one of Roe v. Wade’s key holdings: that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before (fetal) viability.”

The lower courts ruled that the Mississippi law banning abortions at 15 weeks, known as “The Gestational Age Act,” was unconstitutional for that reason; medical science says fetuses generally become viable outside the womb at around 24 weeks.

“This Court should grant the petition, hold that it is illogical to impose a ‘rigid line’ allowing state regulation after viability but prohibiting it before viability” and “uphold the Gestational Age Act,” Attorney General Lynn Fitch wrote in a filing with the U.S. Supreme Court over the summer.

The current case, Fitch wrote in a Supreme Court filing, is “an ideal vehicle to promptly resolve” questions about Roe v. Wade and the Supreme Court’s position on abortion rights…

Read more.