The law at issue in the new case was enacted in 2018 by the Republican-dominated Mississippi legislature. It prohibited abortions if “the probable gestational age of the unborn human being” was determined to be more than 15 weeks. The law provided narrow exceptions for medical emergencies or “serious fetal anomaly”.
Lower courts have blocked Mississippi law, calling it a cynical and calculated attack on abortion rights, in direct contradiction to Supreme Court precedents. Judges agreed to hear the case in May, just months after Judge Amy Coney Barrett, who said she personally opposes abortion, joined the court. She replaced Judge Ruth Bader Ginsburg, an abortion right supporter, who died last year.
In their petition for Supreme Court review, state officials told justices that “the issues presented in this petition do not require the court to overturn Roe or Casey,” although they did raise the possibility in a footnote. Once the court agreed to hear the case, officials shifted focus and launched a sustained attack on those precedents.
In a brief filed in July, Ms Fitch wrote that Roe was “extremely wrong”.
“The Constitution does not protect the right to abortion,” she wrote. “The text of the Constitution says nothing about abortion. Nothing in the structure of the Constitution implies a right to abortion or prohibits states from restricting it. “
Ms Fitch told judges the scope of abortion rights should be determined through the political process. “National abortion fever can only erupt,” she wrote, “when this tribunal returns abortion policy to states – where agreement is more common, compromise is often possible and disagreement is can be resolved at the ballot box.
In the brief filed Monday, Mississippi abortion providers suggested the state’s change in approach represented a bait-and-change tactic that could justify dismissing the case.
The precise question on which the judges agreed to decide was “whether all the prohibitions of foreseeability concerning elective abortions are unconstitutional”. Depending on how the court answers this question, it might reaffirm, revise or remove the long-standing constitutional framework of abortion rights.