Matt Katz: I'm Matt Katz in for Tanzina Vega. Good to be with you today. This week, the Supreme Court announced they will be taking on a controversial case that places in question, the future of abortion rights in this country. The case comes out of Mississippi and deals with the law of the state legislature passed in 2018 that would ban abortions after 15 weeks of pregnancy.
For anti-abortion advocates, the Supreme Court's decision to hear the case is seen as a promising step. In recent years, conservative lawmakers have worked to pass anti-abortion bill after anti-abortion bill hoping one would be taken to the Supreme Court. It's part of a strategy which anti-abortion advocates hope will ultimately overturn Roe v. Wade eroding abortion access on a national level. I'm joined now by Ema O'Connor national reporter for BuzzFeed News. Ema, great to have you with us.
Ema O'Connor: Thanks for having me.
Matt Katz: Tell us what this case is about. What are the justices going to be looking at?
Ema O'Connor: The case is about, as you said, the law bans abortion after 15 weeks-- after the fetus has gone through 15 weeks of gestation, specifically, it's called the gestational age act, unless there is a severe fetal abnormality that would prevent the fetus from surviving outside of the womb, or if there's a medical emergency threatening the life of the pregnant person. Then in basically any other situation, doctors could have their licenses revoked or face a fine but not criminal penalties.
The case mainly focuses around the idea of viability and viability means the fetus's ability to live outside the womb. At 15 weeks with current technology that is virtually impossible. It's hard to say that anything in the world has never happened, but it's basically just not something that can currently happen.
The team arguing on Dobbs's side of the case, Dr. Thomas Dobbs is Mississippi state health director and he's being sued by the state's last abortion clinic, Jackson Women's Health, to prevent the law from going into effect back in 2018 with this pass. Those are the plaintiffs in the case.
On Dobbs's side, they are arguing that science is developing so quickly that the idea of viability which started in Roe, and Roe v. Wade was passed in 1973, started at 28 weeks in the '90s with another major abortion case Planned Parenthood versus Casey that went down to 24 weeks. It's now about 22 to 24 weeks that people think that a fetus could live viably outside the womb with the aid of an incubator and other medical intervention. Dobbs is arguing that in the future that will go down and down and down and down and so we should prepare for future technologies like, and this is actually said in the petition, "An artificial womb" that could potentially keep a fetus alive at 15 weeks or younger.
Courts so far have dismissed this argument and said that it doesn't really make sense to plan for technological developments that don't yet exist. The idea of viability, the idea that banning abortion before a fetus can live outside the womb is so essential to abortion rights in this country. It was written about in Roe v. Wade. It was written about in almost every single decision since then, that even conservative Trump-appointed judges who have heard this case have said that this violates the constitution. That's why it's such a positive sign for anti-abortion advocates and such a negative sign for abortion rights advocates that the Supreme Court has chosen to take this up instead of just dismissing it and relying on the opinions of all of the judges that heard this as it moved up in the courts.
Matt Katz: This was a surprise that the Supreme Court decided to take this, right?
Ema O'Connor: Yes, it was a surprise in some ways. It was a surprise because of how established this is. The way that it's less of a surprise is in June Medical Services v. Russo, Justice Roberts, he opposed it. The Trump appointees on the court not bear it because she had not joined yet. Then the other conservative justices, they were all pro this law going into effect and the liberal justices understandably were against it. Robert surprisingly sided with the liberal justices, but he wrote a separate opinion from Justice Bryer saying that the reason that he was opposed to this law is because it was identical to a law that they had struck down in 2016, in Whole Women's Health v. Hellerstedt and that law literally word for word identical.
He said that he felt that that decision was wrongly decided, but the fact that they had just made that decision about basically the exact same law recently, means that he could not change from that decision, but he very strongly indicated to anti-abortion advocates that he would be opened to reexamining Planned Parenthood v. Casey, and basically the whole idea of undue burden. It's like viability and undue burden are the two keywords that anybody who talks about abortion and the Supreme Court just say all the time.
Basically, undue burden as a standard that was developed in planned Parenthood v. Casey, which was in 1992 that has this idea that laws cannot place an undue burden on a woman seeking an abortion. Meaning, if a law, for example, says that a woman has to travel one state over has to stay overnight, has to come back for another appointment again, has suspended hours listening to a script, that going through that is so difficult that it almost makes getting the abortion possible. That's an undue burden.
Roberts basically said in his dissent, in June that he would be willing to re-examine that standard. He would be willing to re-examine whether Planned Parenthood versus Casey was correctly decided, but the case that was brought before him there just didn't do that. In saying that he basically signaled to anti-abortion advocates, that he was down to hear a case like this. In that way, it's less of a surprise.
Matt Katz: Emma, we've been talking about this case and how it got there. I'm curious if you could take us back to the beginning of the Trump presidency, what were anti-abortion politicians in groups attempting to do? Did getting this case before the court represent their long-term strategy here?
Ema O'Connor: I might actually take you back a little bit further. Now I'm more of a generalist, but for a long time, I was BuzzFeed's reproductive rights reporter. I've really been very deep in this strategy and talking to people on both sides of it for a really long time. I watched this unfold. The year that Trump was elected, the strategy really changed. Before that, the standard was passing these TRAP laws, as abortion rights advocates refer to them, which was the admitting privileges it's things like regulating the size of hallways in abortion clinics, which sounds harmless. When you first see it and you read it you think it's just like a building ordinance, it doesn't really sound like much, but in reality, it's designed to make clinics close down because they are unable to renovate the entire building to expand the hallways to the regulation size. They just don't have the money to do that. A lot of the times they were closing down.
There were a whole bunch of, under the radar, complicated, hard-to-read laws that were being passed that sounded like a line on your insurance claim, but in actuality, it was disintegrating access to abortion across the country. That was a strategy for a very, very long time. When Trump was elected, he had vowed to appoint pro-life, anti-abortion, Supreme Court justices to specifically overturn Roe v. Wade. That's how you get to the Mississippi law. The Mississippi law, it's a more severe version of that based on this 20-week ban, they brought it down to 15.
Matt Katz: Let's say the court upholds the constitutionality of this law, banning abortions after 15 weeks, what are the potential national effects? Is it just massive?
Ema O'Connor: Yes, it's pretty severe. They could make a whole bunch of different decisions. They could just outright overturn Roe v. Wade. That's always a possibility. The general idea is that they don't love doing things like that because it's so extreme. The Supreme Court likes to be seen as just the temperate decision of the land, staying out of politics but the very fact that they took up this case is not that.
They might as overturn Roe v. Wade entirely, in which case every state will be able to decide for itself whether or not to ban abortion at any time period. I think there's a common misconception that if Roe is overturned, then abortion will be illegal across the country. That's not the case. It will stay legal in liberal States and it will likely become illegal in conservative States.
In which case you will see a lot of traveling to have abortions. Another possibility is that they start dismantling it slowly. Maybe they say, "Okay, 15 weeks is the cutoff for viability now." Then there's a whole bunch of bans currently in the courts that are 15 weeks or even 6 weeks, or lower, 8 weeks. Those bans, the six weeks, eight-week bans, if the court specifically decides that 15 weeks is a cutoff, then those might not go into effect, but anything over 15 weeks, which there are also a lot of, so there's a lot of 20 weeks, as I said, there's 18 weeks, those will be able to go into effect basically immediately because a lot of them are currently in the court system. That would actually affect the decision of the judges that are considering them.
Matt Katz: Thank you, Ema. Ema O'Connor is a national reporter for BuzzFeed News. Ema, we appreciate you joining us.
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