WASHINGTON • The Supreme Court agreed Monday to a showdown over abortion in a case that could dramatically alter nearly 50 years of rulings on abortion rights.
With three justices appointed by President Donald Trump part of a 6-3 conservative majority, the court is taking on a case about whether states can ban abortions before a fetus can survive outside the womb.
Mississippi, which is asking to be allowed to enforce an abortion ban after 15 weeks of pregnancy, is not asking the court to overrule the 1973 Roe v. Wade decision confirming a woman's right to an abortion, or a decision 19 years later that reaffirmed it.
But abortion rights supporters said the case is a clear threat to abortion rights. "The court cannot uphold this law without overturning the principal protections of Roe v. Wade," Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a call with reporters.
Even if the court does not explicitly overrule earlier cases, a decision favorable to the state could lay the groundwork for allowing even more restrictions on abortion, including state bans on abortion once a fetal heartbeat is detected, as early as six weeks.
The case probably will be argued in the fall, with a decision likely in the spring of 2022 during the campaign for congressional midterm elections.
Mississippi's ban had been blocked by lower courts as inconsistent with Supreme Court precedent that protects a woman's right to obtain an abortion before the fetus can survive outside her womb.
"States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right, but they may not ban abortions. The law at issue is a ban," Judge Patrick Higginbotham of the 5th U.S. Circuit Court of Appeals wrote in affirming a lower-court ruling that invalidated the law.
The Supreme Court had previously turned down state appeals over previability abortion bans.
More than 90% of abortions take place in the first 13 weeks of a woman's pregnancy, according to the Centers for Disease Control and Prevention.
John Bursch, vice president of the anti-abortion Alliance Defending Freedom, said the high court has repeatedly held that states can regulate abortions later in pregnancy.
Viability "has never been a legitimate way to determine a developing infant's dignity or to decide anybody's legal existence," Bursch said.
The justices had put off action on the case for several months. Justice Ruth Bader Ginsburg, an abortion rights proponent, died just before the court's new term began in October. Her replacement, Justice Amy Coney Barrett, is the most open opponent of abortion rights to join the court in decades.
Barrett is one of three Trump appointees on the Supreme Court. The other two, Justices Neil Gorsuch and Brett Kavanaugh, voted in dissent last year to allow Louisiana to enforce restrictions on doctors that could have closed two of the state's three abortion clinics.
Chief Justice John Roberts, joined by Ginsburg and the other three liberal justices, said the restrictions were virtually identical to a Texas law the court struck down in 2016.
But that majority no longer exists, even if Roberts, hardly an abortion rights supporter in his more than 15 years on the court, sides with the more liberal justices.
White House press secretary Jen Psaki said the Biden administration backs legislation that would write the Roe decision into federal law, regardless of the outcome of the Supreme Court case. The legislation would put an end to state efforts to ban abortion, Northup said.
The Mississippi law was enacted in 2018, but was blocked after a federal court challenge. The state's only abortion clinic remains open. About 10% of its abortions are done after the 15th week, said Shannon Brewer, the clinic director at Jackson Women's Health Organization.
The case is separate from a fight over laws enacted by Mississippi and other states that would ban most abortions when a fetal heartbeat is detected. Mississippi also is among 11 states with a total abortion ban waiting to take effect if the Supreme Court overturns its Roe decision, according to NARAL Pro-Choice America.
A central question in the case is about viability — whether a fetus can survive on its own at 15 weeks. The clinic presented evidence that viability is impossible at 15 weeks, and the appeals court said that the state "conceded that it had identified no medical evidence that a fetus would be viable at 15 weeks." Viability occurs roughly at 24 weeks, the point at which babies are more likely to survive.
But the state argues that viability is an arbitrary standard that doesn't take sufficient account of the state's interest in regulating abortion.
The Mississippi law would allow exceptions to the 15-week ban in cases of medical emergency or severe fetal abnormality. Doctors found in violation of the ban would face mandatory suspension or revocation of their medical license.
TUPELO • In typical fashion, outgoing Mayor Jason Shelton on Monday night gave a glowing review of the All-America city’s overall wellbeing in his eighth and final State of the City address.
The two-term Democratic mayor said that although the city faced a devastating global pandemic this past year, which forced restaurants to temporarily close down and led revenue to slightly dip, the city still saw strong indicators of economic and financial achievement.
“In spite of a global pandemic, the Tupelo City Council and each city of Tupelo department did their jobs — and they did them well,” Shelton said. “Today, I have the great privilege to deliver this address with confidence knowing that by every measurable indicator of success, the state of the city is strong.”
Shelton cited investments in affordable housing units, the construction of roughly 600 new homes since 2013 and investment in long-term projects without raising taxes among the city's successes.
“In looking at the numbers over the last four years in Tupelo’s development, our city is experiencing a construction boom and is stronger than ever,” Shelton said.
The mayor also highlighted that the city’s downtown main street association and its 2020 New Year’s Eve party both received prestigious accolades from the Mississippi Municipal League this past year.
However, in a break from past speeches, the two-term Democratic mayor dedicated much of his address delving into the past eight years of his administration, detailing how the city responded to crises ranging from civil unrest to natural disasters.
Shelton said he believed major challenges his administration faced over the past eight years showcased the city’s ability to respond to emergency situations.
“You can’t control that you get hit by a tornado,” Shelton said. "You can’t control that you get hit by an ice storm or something like that. You can only control how you respond.”
Despite the mayor heralding his administration as one of great success, he didn’t let the event pass without mentioning the ongoing municipal election where two candidates are locked in a competitive race to replace him.
Shelton advised both mayoral candidates — Democrat Victor Fleitas and Republican Todd Jordan — that their platforms may not always be a priority for the members of the Tupelo City Council. Both Fleitas and Jordan attended the address.
“There’s going to be a time of disagreement, but there’s one thing I’m absolutely certain about,” Shelton said to the two mayoral candidates. “And that’s that the seven men and women on the city council love the city of Tupelo as much as I do.”
Even though Shelton is not running for a third term, citing concerns that he would have experienced a bitter re-election campaign, he said he’s enjoyed serving as Tupelo’s mayor for the past eight years.
“This is something that I will live for the rest of my life with a great sense of pride knowing that working with a great group of individuals that we were able to make a positive impact on our city.” Shelton said. “And that we were able to leave our city better than we found it.”
TUPELO • With Mississippians now bereft of any way to directly amend their state constitution, momentum is building for a special session of the Legislature to begin the revival of the voter initiative process.
Following a consequential ruling by the Mississippi Supreme Court on Friday, Speaker of the House Philip Gunn, R-Clinton, on Monday called for Gov. Tate Reeves to convene a special legislative session — something only the governor can do.
“We 100% believe in the right of the people to use the initiative and referendum process to express their views on public policy,” Gunn said. “If the legislature does not act on an issue that the people of Mississippi want, then the people need a mechanism to change the law. I support the Governor calling us into a special session to protect this important right of the people.”
In a ruling last week, the Mississippi Supreme Court voided the passage of Initiative 65, which legalized medical marijuana, and found that, under current law, there is no valid way to place a voter initiative on the ballot.
Gunn heads the state House of Representatives and would thus play an influential role over the outcome of any special session, but the governor must first call the special session and set the agenda to be considered.
Though he called for a special session intended to address the initiative process, Gunn’s office did not respond on Monday to questions from the Daily Journal about whether he would support also addressing medical marijuana in a special session.
The presiding officer in the state Senate — Lt. Gov. Delbert Hosemann — has not publicly stated whether or not he supports any kind of a special session in response to last week’s ruling by the state’s high court.
Hosemann’s office did not respond on Monday to questions from the Daily Journal.
The governor’s office also did not respond on Monday to questions from the Daily Journal about whether Reeves may call a special session.
Gunn, Hosemann and Reeves are all Republicans.
However, even as some key figures are staying silent, other elected officials are lending their own support to the growing momentum for legislative action.
Secretary of State Michael Watson — who administers the voter initiative process as chief elections officer — said on Monday that he supports a special session to address a number of issues raised by Friday’s ruling on Initiative 65
Watson, a Republican, said he supports action to restore the voter initiative process and to create a medical marijuana program, something a majority of Mississippians backed in 2020. The first-term secretary of state also said lawmakers should take action to dispel any doubts about the validity of prior citizen-initiated referendums.
Comments on Monday by Gunn and Watson followed that of Northeast Mississippi’s public service commissioner, Brandon Presley.
“With the change of one word in one hour the Legislature could restore the people’s power. Reeves should get that ball rolling today by calling a special session,” Presley said in a statement.
A Democratic utility regulator from Nettleton, Presley cast his support of the initiative process in populist terms.
“You can bet that the lobbyists and fans of partisan gridlock are cheering, tinkling their glasses and grinning like a mule eating briars after the Mississippi Supreme Court gutted the initiative and referendum process on Friday,” Presley said in a statement, a version of which first appeared on Facebook.
Mississippi’s constitution requires that signatures collected in favor of a voter referendum must be spread among five congressional districts. The Magnolia State lost a congressional district after these rules were crafted, and so only has four districts now.
To change these rules, the Legislature would have to place a proposed constitutional amendment of its own on the ballot, allowing voters to approve the constitutional changes needed to pass muster with the state Supreme Court.