Q&A: ‘It seems clear’ Supreme Court will overrule or revise Roe v. Wade

Earlier this week, the U.S. Supreme Court agreed to hear arguments in a Mississippi case that would ban abortions after 15 weeks, The Associated Press reported.

“This is a huge case,” Jessie Hill, JD, the associate dean for research and faculty development and a professor at the Case Western University School of Law, told Healio Primary Care. “It is hard for me to imagine any scenario where this case is not a major sea change in the law around abortion and reproductive rights.”

Research has shown that curtailing abortion access can negatively impact women’s health. As Healio Primary Care previously reported, studies revealed that women who were denied wanted abortions were more likely to report worse long-term physical health and suffer from anxiety and depression.

We asked Hill to discuss how the Supreme Court might rule, the ramifications of upholding the Mississippi law and other information about the case.

Healio Primary Care: How do you think the Supreme Court will rule in the Mississippi case? Why?

Hill: It is always dangerous to predict.

However, it seems unlikely that the court would have taken this case to reaffirm existing precedent. So, it seems clear that the Supreme Court is ready to either overrule Roe v. Wade, or, more likely, cut back on it and really revise the doctrine so that it will be a lot easier for states to pass abortion restrictions.

This case shows the significance of the change in the composition of the Supreme Court over the past few years, particularly how important it was that Justice Ruth Bader Ginsburg was replaced with Amy Coney Barrett, and Justice Anthony Kennedy was replaced by Scott Kavanaugh. We would not be talking about the Mississippi case if that had not happened.

Healio Primary Care: What are the implications if the court decides to uphold the Mississippi law to ban abortion after 15 weeks?

Hill: It depends on the “how” and “why” and what the Supreme Court says in its opinion.

It's hard to imagine that they could uphold this ban without changing the law in a major way, because 15 weeks is a point well before where any medical authority considers the fetus to be viable. If there is one central principle or rule that has come out of Roe v. Wade and has had staying power, it is that states cannot ban abortion but could regulate it and add requirements before that viability point.

If the Supreme Court upholds the Mississippi law, it means that they have really abandoned that principle. And therefore, states are going to have a much easier time not just restricting, but even banning abortion in a variety of circumstances. States will either have easy abortion access or difficult access, on top of our moving to patchwork of abortion access across the country. (Mississippi, for instance, has only one abortion clinic for the whole state.)

Healio Primary Care: What other legal actions are currently underway that threaten abortion access?

Hill: There are numerous cases pending in the federal courts that deal with other kinds of abortion restrictions, including a case out of Arkansas that makes an abortion illegal if the woman is seeking it because of a diagnosis of Down syndrome in the fetus.

There are also pending legal challenges to state laws banning the most common second-trimester method of abortion known as “D&E.” And some states have passed laws banning abortion at an even earlier point in pregnancy than 15 weeks — such as when fetal cardiac activity can be detected, around 6 weeks of pregnancy.

Healio Primary Care: What legal consequences do physicians face if they perform an abortion “illegally?” How could they fight these repercussions?

Hill: Physicians who violate the Mississippi law, if convicted, could face fines and loss of their license. In other states, convicted physicians face felony charges carrying substantial prison terms for violating abortion restrictions.

So far, abortion providers have been successful in challenging restrictions like Mississippi’s in court, preventing the restrictions from going into effect. But this will become more difficult if the Supreme Court decides that most abortion restrictions are constitutional, and doctors may find themselves defending against criminal charges or disciplinary actions before their state medical board.

Reference:

AP. Supreme Court to take up major abortion right challenge. https://apnews.com/article/supreme-court-abortion-15-week-ban-5d066a9dc0030a4f8297711f341c9f5a. Accessed May 18, 2021.