For the first time in decades, the federal right to abortion faces an existential threat. On Wednesday, the Supreme Court will hear a case challenging a Mississippi law that bans abortions after 15 weeks of pregnancy. The law violates high court precedents protecting the right to abortion before fetal viability, generally considered around 24 weeks. But the justices have asked to hear arguments on “whether all pre-viability prohibitions on elective abortions are unconstitutional,” suggesting a majority of justices may be willing to further narrow – or perhaps even overturn – the federal right to abortion and make it a become a more location-dependent decision for states.
“There would be a much greater degree of political uncertainty,” says Justin Long, an associate professor of law at Wayne State University. “What rights exist and what don’t will be evolving and changing faster than it has at the federal level. It’s normal for state constitutions and state high courts to be the site of these kinds of deep value contests,” he adds. But “there’s a dignitary harm that follows from demoting the debate to the state level, as well as the practical harm that follows from having that uncertainty.”