Demonstrators hold crosses after The Stanton Public Policy Center/Purple Sash Revolution news conference with national anti-abortion organizers at the Supreme Court in Washington, D.C., on Tuesday. Photo Leigh Vogel/UPI | License Photo
Nov. 29 (UPI) -- The Supreme Court will hear an abortion case Wednesday challenging the fetal viability standard set in the landmark Roe vs. Wade case.
In Roe vs. Wade, the Supreme Court's landmark Jan. 22, 1973, decision, the court ruled that the constitutional right to privacy includes a woman's decision to obtain an abortion before the fetus reaches viability.
The Supreme Court will hear oral arguments Wednesday in the Dobbs vs. Jackson Women's Health Organization case, No. 19-1392, over a Mississippi law that bans abortions after 15 weeks, still before viability, undermining the fetal viability standard set in Roe vs. Wade.
The case is poised to be another landmark case testing the 6-3 conservative court's trajectory, and whether it's prepared to erase the fetal viability standard.
The state may not interfere with the woman's decision to obtain an abortion in the first three months of pregnancy, according to Roe vs. Wade, but can reasonably regulate it in the second trimester to protect the mother's health. In the third trimester, once the fetus reaches viability, the state can prohibit all abortions except those necessary to protect the mother's life and health.
Lynn Fitch, attorney general of Mississippi, has argued that Roe vs. Wade and the court's decision in another case, Planned Parenthood vs. Casey, which set the standard that there shouldn't be an "undue burden" on abortion access, "were egregiously wrong."
The state's lawyers also argued that the "undue burden" standard should allow for its 15-week cutoff because a "vast majority of abortions take place in the first trimester."
States are allowed to regulate abortion under Roe and Casey before fetal viability as long as it doesn't place an "undue burden" on abortion access.
Critics say Mississippi's law, which bans abortions after 15 weeks and only makes exceptions for medical emergencies or "severe fetal abnormality," violates constitutional standards.
Meanwhile, abortion providers are awaiting the Supreme Court's ruling on the Texas abortion law, which bans abortions when the fetus is showing cardiac activity around six weeks into pregnancy.
The Supreme Court's makeup has shifted to become more conservative in recent years. In 2018, then-President Donald Trump nominated Justice Brett Kavanaugh, who replaced the more moderate Justice Anthony Kennedy, and in 2020, Trump nominated Amy Coney Barrett, who replaced the late Justice Ruth Bader Ginsburg.
In 2020, Ginsburg joined the court's three other liberals and Chief Justice John Roberts to rule against a Louisiana abortion restriction in a 5-4 ruling.