Ever since the Supreme Court recognized a woman’s right to terminate her pregnancy by abortion in its landmark 1973 Roe v. Wade and 1992 Planned Parenthood v. Casey decisions, states have been chipping away at that right by enacting increasingly stringent pre-viability restrictions. Now Mississippi has decided to stop chipping and instead, ask the court to completely obliterate a women’s right to choose.

“Nothing but a full break … can stem the harms (those cases) have caused,” the petition argues.

The writ of certiorari, filed by two Mississippi government health departments, asked the Supreme Court to reverse the decision of Mississippi’s lower courts that struck down the state’s “Gestational Age Act” because, with limited exceptions for medical emergency or severe fetal abnormality, it prohibited abortion after 15 weeks. Most medical experts place viability at 24 weeks.

Petitioners are the State Health Officer of the Mississippi Department of Health, headed by Thomas V. Dobbs, and the Executive Director of the Mississippi State Board of Licensure. The Jackson Women’s Health Organization and a local doctor opposed the petition on behalf of themselves and their patients.

Mississippi opened its brief with a succinct question: May a State prohibit elective abortions before viability? They claimed that nothing in the Constitution prohibits such a right as long as there is a rational basis for its actions. They quickly admitted that “this case is made hard” by Roe and Casey, both of which protect the right to abortion as long as state regulations do not prohibit the procedure or pose an undue burden on obtaining one prior to a fetus becoming viable.

Just as quickly the petition contends that Roe and Casey should be overruled because the precedents for overturning them are “overwhelming” since “Roe and Casey are egregiously wrong…(and) without basis in text, structure, history, or tradition.” It attacked the contention by Roe author Justice Harry Blackmun that the “right is inherent in the Due Process Clause of the Fourteenth Amendment and is a fundamental right to privacy that protects a pregnant woman’s choice whether to have an abortion.”

Blackmun’s decision also said that the right to an abortion must be balanced against “the government’s interest in protecting women’s health and protecting the potentiality of human life.” Roe struck down a Texas law that violated this right. Casey expanded the rationale by saying the Constitution protects “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.”

Petitioners continued by discussing how "unworkable" the balancing act required in Roe and Casey are, due to their “lack of guidance.” Next, they argued that Roe has “inflicted significant damage” by placing “contested policy issues of our time largely outside the arena of public debate and legislative action…Abortion jurisprudence has placed this Court at the center of a controversy that it can never resolve,” they wrote. Furthermore, they argue, no precedent applies because none are about “the purposeful termination of a potential life.”

The brief, written by Mississippi Attorney General Lynn Fitch, next argued how times have changed since “the march of progress has left Roe v. Wade behind.” She wrote “pregnancy no longer dooms women to a distressful life and future,” because adoption is now accessible, contraceptives are more available and effective, and scientific advances show that viability occurs much earlier than previously thought. Also, women can now obtain “both professional success and a rich family life.” The petition relates the country’s long history of cases that, they argue, do not support abortion rights, calling them “unmoored from (indeed, defeated by) history and tradition.”

A large part of the petitioner’s argument rests on the standard a court must use to examine a state restriction on elective abortion. Currently, Roe requires “heightened scrutiny,” while they argue that only a “rational basis” should be required and that there is always a rational basis in protecting unborn life and women’s health.

The other repetitive argument concerns the medically elusive exact time of viability. Petitioners argue that fetal heartbeats can be detected as early as six weeks after conception. As a result, they argue,

“This court should reject viability as a barrier to prohibiting elective abortions.” They argue that viability has no basis in the Constitution, that the state’s interest in protecting women and fetal health begins at conception, that viability requirements prevent the state from carrying out its duty, and that viability standards prevent the state from recognizing medical and scientific technological advancements that have “greatly expanded our knowledge of pre-natal life.”

Petitioners also take a swipe at the right of the judicial branch to be in the abortion arena at all, stating, “The workable approach to accommodating the competing interests here is to return the matter to “legislators, not judges.” Later, it argues, “Roe and Casey are profoundly unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law, and harmed the perception of this legitimacy. This Court can thus offer the Nation an overwhelming case for overruling Roe and Casey. And a principled affirmation that the Constitution leaves most issues to the people—and that abortion is such an issue—would be a powerful example to the Nation of this Court’s “commitment to the rule of law.”

Abortion is now legal in all 50 states, but since the start of 2021, at least 17 states have enacted harsh restrictions on access. For example:

• Arkansas banned all abortions, including in the case of rape or incest, excepting if the woman’s life is endangered. The Governor has already stated that the bill is a “direct challenge to Roe v Wade.

• Texas, Idaho and South Dakota have passed laws mandating that a physician check for a fetal heartbeat and bans abortion if a heartbeat is detected. Many women do not even know they are pregnant six weeks after conception.

• The Kansas legislature is seeking to amend the state’s constitution to say there is no constitutional right to abortion or government funding for abortion, although there may be exceptions for rape or incest.

• Several states, including Indiana, Kentucky, and Louisiana, have passed some form of “abortion reversal” laws that requires abortion providers to tell patients that medically induced abortions may be discontinued after they are started.

• Montana has banned abortion after 20 weeks, New Hampshire after 24.

The Supreme Court announced in May that it has agreed to hear the case in the fall, and the new conservative majority causes great concern that Dobbs v. Jackson Women’s Health Organization could renounce Roe. The Washington Post called this case “The most direct challenge to abortion rights at the Supreme Court in decades,” and quotes Nancy Northrup, president and CEO of the Center for Reproductive Rights as saying, “If Roe falls, half the states in the country are poised to ban abortion entirely.