Opinion: This could be the case that takes down Roe v. Wade

5 min read
In agreeing to hear Dobbs v. Jackson Women's Health Organization, the Supreme Court (and its new conservative supermajority) are gearing up to take a direct hit on the question of abortion and the future of Roe v. Wade, says law professor Mary Ziegler.
Mary Ziegler is a law professor at Florida State University College of Law and author of Abortion and the Law in America: Roe v. Wade to the Present . Follow her @maryrziegler . The opinions expressed here are those of the author. View more opinion on CNN.

(CNN) Just a week ago, it seemed hard to imagine that the Supreme Court, with its conservative supermajority, was ready for a direct attack on Roe v. Wade. After all, the justices had been considering a Mississippi abortion case since September without saying a word.

And yet Monday, the court agreed to hear Dobbs v. Jackson Women's Health Organization, a challenge to a 2018 law banning abortion at 15 weeks. And more shocking still, the court chose not to take the less controversial off-ramp offered by Mississippi.

Last summer, Chief Justice John Roberts had voted with his liberal colleagues to preserve abortion access in Louisiana but seemed to water down the protection for access provided by the undue burden test . Mississippi's appeal raised three different questions for the court's consideration, including one about whether Roberts' interpretation (that the undue burden test did not require courts to weigh whether a law had any benefits -- and required substantial deference to state legislatures) was the correct one.

If the justices had wanted to avoid controversy, they could have agreed to hear the appeal only on that question, concluded that Roberts' standard should apply and given states more latitude to regulate abortion. But the court bypassed that question for a direct hit: could states ban elective abortions outright before viability -- the point at which it is possible for the fetus to survive outside the womb. In the Roe v. Wade decision, the majority on the court said that government only had a valid interest in prohibiting abortion in circumstances where the fetus would be viable; in 1973, the court pronounced, that point was around 24 weeks of pregnancy

Many advocates and Americans in general…
Opinion by Mary Ziegler
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