The Supreme Court is sitting on a petition in a Mississippi abortion case that could blow the lid off Roe v. Wade.
The case, Dobbs v. Jackson Women’s Health Organization, has been before the court since September without a word from the justices. It has been considered at the court’s conferences eight times and each time left on the table. That likely means that fewer than four justices so far have voted to take up the case. Another possibility is that the court has already rejected the case and one of the conservative justices is working on a dissent that will be released in one of the court’s orders list.
The lack of action at this point in either direction is surprising to some anti-abortion advocates, who, especially after former President Donald Trump’s administration appointed Justice Amy Coney Barrett to the court, expected the court to weigh in on the controversial issue.
“We certainly hope the Supreme Court will take advantage of this opportunity to act — they cannot afford to punt on this issue any longer,” said Mallory Quigley, vice president of communications at the Susan B. Anthony List, one of the largest anti-abortion groups in the country.
The case arose after Mississippi passed a 2018 law banning abortions after 15 weeks. Several lower courts found that the law was inconsistent with the Supreme Court’s rulings in Roe v. Wade and Planned Parenthood v. Casey, the two decisions that established the status quo on abortion law in the United States.
Mississippi Attorney General Lynn Fitch appealed the case to the Supreme Court as it considered a Louisiana abortion restriction that essentially outlawed the practice. In that case, Chief Justice John Roberts joined the liberal minority to the surprise of many. Roberts’s position angered many conservatives, with some pointing out that his vote appeared to be an about-face from his earlier abortion opinions.
But the ascent of Barrett, which cemented a 6-3 conservative supermajority on the court, gave anti-abortion advocates hope that Dobbs could be the case to knock out Roe. Just hours after the justice was confirmed in a Senate vote, Fitch filed a brief to the court claiming that the case still presented an “an ideal vehicle” to revisit and clarify the murkier aspects of Roe, in particular the definition of “viability.”
Bans on abortion after 15 weeks, which have been proposed in several states aside from Mississippi, are nationally popular. A 2019 Marist poll found that only 29% of people think that abortion should be permitted after the first three months of pregnancy. This year, several states have passed such bills, often to challenge Roe directly.
Even if the court ultimately rejects Dobbs, Quigley said, anti-abortion groups have an entire arsenal of other state bills that they plan to send its way.
“Nearly 400 pro-life bills have been introduced in this year alone in state legislatures across the country,” she said. “As case after case heads their way, the Supreme Court should realize that this issue is not going anywhere.”