TAMPA, Fla. - A major challenge to reproductive rights protected in the landmark Roe v. Wade decision sits before the U.S. Supreme Court after justices listened to arguments Wednesday about a Mississippi abortion law.
"If they decide to uphold Mississippi's law, they would inherently have to overrule Roe v. Wade because Roe v. Wade says that a state cannot impose restrictions up until viability, which is typically about 24 weeks. And so this would be much more restrictive than Roe v. Wade allows for," said Robyn Powell, a visiting assistant professor at the Stetson University College of Law.
The high court heard arguments in which the justices are being asked to overrule the court’s historic 1973 Roe v. Wade decision legalizing abortion and its 1992 ruling on Planned Parenthood v. Casey, which reaffirmed Roe. Under those decisions, states can regulate – but not ban – abortion up until the ‘point of viability,’ which is defined at roughly 24 weeks into a pregnancy.
The Mississippi case poses questions central to the issue of viability, saying 24 weeks is an arbitrary standard that doesn’t take sufficient account of the state’s interest in regulating abortion. Mississippi also contends that scientific advances have allowed some babies who were born earlier than 24 weeks to survive, though it does not argue that the line is anywhere near 15 weeks.
All nine justices now have to weigh how far to cut women's rights, if at all.
Saint Leo University law professor Joseph Cillo said it could come down to states' rights.
"I think the court is like they're saying, ‘Wow, is this a constitutional issue, a federal issue or is this a state issue?’ If they want a punt and not make the ultimate decision, they can say, ‘Let it go back to the states and the individual states can make their own decision,’" said Cillo. "But that's not an opinion that applies to every state. It would fracture Roe v. Wade, but still allow more liberal states to keep their law in place."
Roe v. Wade was a landmark decision in 1973. Along with Doe v. Bolton, the court ruled it to be illegal to deprive women of the right to privacy and the right to have an abortion.
"This decision is a major decision that found that all of the state criminal abortion laws that had been passed in the 19th Century were unconstitutional," said Leslie Reagan, a history professor at the University of Illinois at Urbana-Champaign, who has written books on reproductive health rights.
Reagan said a change in Supreme Court precedent could set up a battle in Florida – and across the country – over women's rights.
A Florida state lawmaker has introduced a Texas-style abortion ban bill for the 2022 legislative session.
"About a dozen states have what are called ‘trigger laws’ and it will be immediate. If Roe vs. Wade is overturned, then abortion will be criminalized again as it was in the 1860s and 1870s," said Reagan. "This is such an important question because it really will change the landscape for reproductive health and really privacy and sexual rights to sexual freedom and personal decision making across the country, specifically in terms of abortion."
The U.S. Supreme Court still has months to hand down a ruling, and a decision is not expected until late spring 2022.
The Associated Press contributed to this report.