What is the Mississippi abortion law?

Mississippi enacted a bill in 2018 that made abortion illegal after 15 weeks of pregnancy in most cases which was immediately challenged in court. The law is a direct challenge to abortion rights granted under the 1973 Supreme Court ruling in Roe v Wade.

The sole remaining abortion clinic in the state, the Jackson Women’s Health Organization, sued Mississippi over the prohibition. After losing in lower courts, the state has now appealed those decisions all the way to the Supreme Court where the fate of nearly 50 years of judicial precedent hangs in the balance.

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Abortion restrictions limited by fetal viability

At the heart of the Mississippi abortion law is “fetal viability” or the point when a fetus can survive out of the womb. When the Supreme Court ruled in Roe v Wade that a woman had a constitutional right to choose to terminate her pregnancy, the majority decision said that states could not limit that right before the end of the second trimester or 28 weeks after the start of a pregnancy. After this point, babies born before reaching full-term had a resonable chance of surviving.

This limitation based on trimesters however was replaced by the Supreme Court decision in the case of Planned Parenthood v Casey. The majority ruling by the Justices in 1992 left in place the right to abortion but set the limit for government intrusion based on fetus viability. However states could not put in place any “undue burden” to accessing abortion prior to that point in a pregnancy. This shift was due in part to medical advances in keeping a baby born prematurely alive.

In 1973 the chance of a fetus surviving outside the womb prior to the third trimester was very low. Since Roe v Wade was decided there have been major strides in medicine decreasing the mortality rate for premature births prior to 28 weeks. In the US, as of 2001 fetal viability occurred around 24 weeks, however in rare cases babies born at 21 weeks have survived. Babies born at very premature gestational ages though are likely to face lifelong health challenges.

Mississippi abortion law designed to overturn Roe v Wade

With narrow exceptions if the mother’s health is at risk or there is “a severe fetal abnormality,” the Mississippi law prohibits abortions when “the probable gestational age of the unborn human” is determined to be more than 15 weeks. The law makes no exceptions for pregnancies that are the result of rape or incest. By prohibiting abortions at 15 weeks, the statute is a direct challenge to Roe v Wade as the ban starts well before the even the earliest fetal viability.

The law, although enacted, has never been applied since lower courts have determined that the prohibition violates constitutional precedent set by Roe and upheld in later rulings. The state asked the Supreme Court to hear its appeal challenging the idea that all limits on elective abortion prior to viability are unconstitutional.

The proponents of the Mississippi law are hoping that the Supreme court will be more friendly to the concept now that it has a solid conservative majority. But the long game has always been overturning Roe v Wade which the state Attorney General Lynn Fitch asked to court to do in when Mississippi filed to have its case heard in July.

The three newest additions to the highest court were placed there by former President Trump who said he would only select nominees for the Supreme Court that would overturn Roe v Wade. All eyes are on the Court to see if the Chief Justice John Roberts will find a way to uphold Roe but allow for the Mississippi ban to remain.