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Is the Supreme Court looking to overturn Roe v. Wade? Here’s what one expert thinks

The Supreme Court on Monday agreed to hear arguments in a major abortion case that could roll back limits on abortion laws cemented by the landmark reproductive rights case Roe v. Wade. In its term beginning October, the court will consider a Mississippi state law banning abortions after 15 weeks. John Yang discusses the matter with Mary Zieglar from Florida State University College of Law.

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  • Amna Nawaz:

    Now a central battle in our courts and culture, abortion rights, will face landmark arguments before the Supreme Court.

    John Yang has that story.

  • John Yang:

    Amna, the court said it will decide the constitutionality of a Mississippi law that would ban almost all abortions after 15 weeks of pregnancy.

    Now, that's well before the point of viability. Viability is the point after which a fetus could survive outside the womb. And the Supreme Court has said that states may not limit abortions pre-viability. At 15 weeks, the Mississippi abortion ban would be one of the most restrictive in the nation.

    According to the Guttmacher Institute, which advocates for abortion rights, 18 states ban abortions after 20 weeks of pregnancy.

    Mary Ziegler is a Florida State University law professor and author of "Abortion and the Law in America."

    Professional Ziegler, thanks so much for joining us.

    Now, this Mississippi law has not taken effect, because lower courts say that it conflicts with Roe vs. Wade. Does the court saying they're taking this case necessarily mean they're going to use this case to overturn Roe?

  • Mary Ziegler:

    No, but I think the court's taking this case signals that they are interested, if not in getting rid of it altogether, at least in rethinking viability as the point at which states can ban abortions.

    And that would be almost as significant as overturning Roe itself. I think any outcome in this case short of sustaining what the lower courts have done would be explosive.

  • John Yang:

    So, explain to us what that would look like. What would it look like if the court upheld Roe vs. Wade, but also upheld the 15-week ban?

  • Mary Ziegler:

    Well, so, the court has had a history in the abortion context of tinkering with what counts as the essential holding of Roe v. Wade.

    So, in 1992, in a case called Planned Parenthood vs. Casey, the court changed the rules that apply to determine the constitutionality of abortion regulations. It had been the trimester framework, which disallowed most restrictions in the first trimester. Now it's the undue burden test.

    So ,the court said, we can get rid of parts of Roe, but not the — we will keep the important parts. So it's possible that the court could now say viability is no longer essential, and to kind of repeat and extend what happened in 1992.

  • John Yang:

    So, of the current makeup of the court, three justices, Justices Thomas, Alito and Gorsuch, have all said in one form or another and opinions they think the court got it wrong on abortion.

    What do we know about the others, Chief Justice Roberts, Justices Kavanaugh and Barrett?

  • Mary Ziegler:

    Well, so Chief Justice Roberts is the one we know the most about, because, this summer, he sort of staked out a position in June Medical vs. Russo that essentially he's certainly a skeptic that abortion rights are protected by the Constitution.

    But he also seems to be more deferential when it comes to the court's past precedents. So, it would seem that Roberts would be reluctant to overturn Roe and perhaps even to uphold the Mississippi law.

    We don't know as much about Barrett and Kavanaugh. Kavanaugh has never voted to strike down an abortion restriction on the court. He joined the dissenters in June. But he seemed a little bit more cautious, certainly, than Justices Thomas and Alito, and wasn't really on the ramparts calling for the immediate overruling of Roe.

    Barrett is a question mark, because she said almost nothing about abortion, written no opinions on abortion since joining the court. But we can infer from the court's decision to take this case that there are at least four justices who think that the court will uphold this law and that, certainly, also, that there are four justices who think they have a fifth, right?

    So there would be no reason for the court to agree to take this case unless the conservatives think they have a majority, at a minimum, to uphold this Mississippi law, and perhaps to go much further.

  • John Yang:

    Professor Mary Ziegler of Florida State University, thank you very much.

  • Mary Ziegler:

    Thanks, John.

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