Revisiting ‘Roe’: Why the Supreme Court Decision on Mississippi Case Will Likely Ditch Viability

The U.S. Supreme Court finally announced May 17 that it would decide Dobbs v. Jackson Women’s Health Organization, where a Mississippi law banned most abortions after the 15th week of pregnancy because, by then, the fetus is capable of perceiving pain.

I say “finally” because the petition for review lingered in the high court for 11 months, an exceptionally long time. I say “finally” also because the news relieved months of suspense, more keenly felt since last Oct. 26, when Amy Coney Barrett joined the Supreme Court. Countless Americans have wondered since then when the court would take a case presenting the question: Shall Roe v. Wade be overruled?

Now we know the answer. Mississippi’s lawyers told the court that Dobbs does “not require the Court to overturn Roe or [Planned Parenthood v.] Casey,” the 1992 case that reaffirmed Roe. But they also wrote that “[i]f the Court determines that it cannot reconcile Roe and Casey with other precedents or scientific advances showing a compelling interest in fetal life far earlier in pregnancy [than viability, which] those cases contemplated, the Court should not retain erroneous precedent.” Translation: Roe and Casey should then be overruled.

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