WASHINGTON – The Supreme Court's blockbuster abortion case is centered on a Mississippi law that bans the procedure after 15 weeks of pregnancy, but a ruling by the court will almost certainly have sweeping implications for states across the country.
The court's conservative justices signaled during nearly two hours of oral argument Wednesday that they are prepared to usher in a shift in the nation's reproductive rights landscape, potentially upholding the Mississippi ban and maybe even overturning the landmark Roe v. Wade decision that in 1973 established a constitutional right to abortion.
"The real-world effects of overruling Roe and Casey would be severe and swift," Solicitor General Elizabeth Prelogar told the court on behalf of the Biden administration. "Nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest."
But that is precisely the argument that Mississippi, anti-abortion advocates and several conservatives on the court have embraced: Because abortion is such a controversial issue, they say, decisions about whether to permit it should be left to individual states.
"If the matter is returned to the people, the people can deal with it," Mississippi Solicitor General Scott Stewart said. "They can compromise and reach different solutions."
To a large extent, experts note, that has already happened. Dozens of conservative states have already imposed "trigger" bans to prohibit abortions if the high court overturns Roe v. Wade. Many liberal states, meanwhile, have affirmatively protected the right to abortion, meaning the procedure would remain available within their borders even if Roe is overturned.
Nine states, including Alabama, Arizona, Wisconsin and West Virginia, adopted abortion bans before the Supreme Court decided Roe, according to the Guttmacher Institute, a research group that supports abortion rights. An additional eight states, including Idaho, Kentucky and Tennessee, approved "trigger bans" to prohibit the procedure if the court overturns Roe.
Four states, Arkansas, Mississippi, Oklahoma and Texas, have both a pre-Roe ban and a trigger ban on the books, according to Guttmacher.
And at least 14 states, including California, New York and Illinois, have approved laws protecting the right to abortion that would likely remain in effect no matter how the court rules in the Mississippi case. In other words, if the Supreme Court overturns Roe, it would likely lead to a patchwork of abortion laws depending on the state.
"And to be clear, you're not arguing that the court somehow has the authority to itself prohibit abortion or that this court has the authority to order the states to prohibit abortion as I understand it, correct?" Associate Justice Brett Kavanaugh asked during the argument in a question that appeared to be intended to frame the debate.
"Correct, your honor," Stewart said.
If the court overturns Roe v. Wade, the impact on individual states would be relatively clear based on existing law. But if the justices reached for a middle ground – allow Mississippi's 15-week ban to remain in place, say, but also rule people still have a constitutional right to abortion – experts say that would lead to a flood of new laws, and lawsuits.
Abortion rights advocates say such an outcome would not only prompt conservative states to pass their own 15-week bans, but might also give a lift to states seeking to ban the procedure earlier. Texas, which currently bans abortions after six weeks of pregnancy, is one of several states that have already approved earlier cutoffs.
Two challenges to the Texas law are pending at the Supreme Court.
The current standard, set down in Roe and a subsequent Supreme Court case from 1992, is viability, or the point when a fetus can survive outside the womb – roughly 24 weeks. The Supreme Court could throw out viability as the cutoff, but such a move would raise a big question that has vexed the court for decades: Where to draw a new line?
"Without viability, there will be no stopping point," Julie Rikelman, arguing on behalf of the Mississippi clinic, told the high court. "States will rush to ban abortion at virtually any point in pregnancy."
A decision in the case is expected by early summer.
This article originally appeared on USA TODAY: Supreme Court ruling on Miss. law may affect abortion in your state