What to watch for as the Supreme Court reconsiders Roe v. Wade

By Dan Berman and Ariane de Vogue, CNN

The Supreme Court hears oral arguments Wednesday in a case that could result in the repeal of Roe v. Wade, the decision legalizing abortion nationwide that’s been at the center of American politics for nearly 50 years.

Here are the key details:

How to listen and follow along

Arguments begin at 10 a.m. ET.

The court still doesn’t allow TV cameras, but it has finally relented on live audio. You can listen on CNN.com and follow along with our live coverage.

What is the Mississippi law at issue?

It bars most abortions after 15 weeks of pregnancy, a standard that violates Roe v. Wade. It’s one of several laws passed in various states with the purpose of getting the Supreme Court to hear a direct challenge to Roe.

The 5th US Circuit Court of Appeals — perhaps the most conservative appeals court in the country — blocked the law, saying it violated Roe and Supreme Court precedent. Mississippi appealed to the Supreme Court, which agreed last spring to hear the case.

What does Roe say?

Roe guaranteed a woman’s right to obtain an abortion nationwide, using a trimester approach.

For the first trimester of pregnancy, the court said the abortion decision should be left to the woman and her physician; for the second trimester, a state could regulate the abortion procedure in ways reasonably related to the woman’s health; for the final trimester, after fetal viability, the state could promote its “important and legitimate interest in potential life” and ban abortion except when necessary for the woman’s life or health.

What is Casey?

In 1992, the court, asked to reconsider Roe, ditched the trimester approach but kept the viability standard, though it shortened it from about 28 weeks to about 23 weeks.

It said the new standard should be on whether a regulation puts an “undue burden” on a woman seeking an abortion. That phrase has been litigated over ever since.

What about Texas? Didn’t SCOTUS just hear an abortion case?

The Texas law banning most abortions after about six weeks of pregnancy — often before a woman knows she is pregnant — remains in full force. The justices let it take effect in early September, then heard oral arguments on November 1 and have yet to act despite its conflict with Roe v. Wade.

SCOTUS-watchers anticipated that the justices had heard the Texas case quickly in order to rule before they took up the Mississippi law, but that hasn’t happened.

The Texas law has a novel enforcement mechanism that allows people to sue abortion providers or others who assist women who obtain abortions after six weeks, rather than directing state officials to enforce it. It’s created a legal mess, as the law was designed to avoid a preemptive challenge but the court is still considering who’s allowed to sue and whom the suits should be directed toward.

What happens if Roe is overturned

The Texas law in effect now could be considered a model for a post-Roe world where abortions are limited or prohibited in certain states or regions.

Abortion clinics as far from the state as Florida have reported that women from Texas have traveled there for abortions, and should Roe be overturned, there would be a large swath of the country where abortions are illegal, since states would be allowed to ban them.

According to the pro-abortion rights Guttmacher Institute, 26 states are certain or likely to ban abortions if Roe is overturned. Meanwhile, Illinois, North Carolina and California are among the states that could see an increase in out-of-state abortion patients, as their clinics would be closest for women whose own states are positioned to quickly ban the procedure, Guttmacher’s analysis says.

Who’s arguing on each side

Mississippi Solicitor General Scott Stewart, a former clerk of Justice Clarence Thomas, will go first.

Stewart is likely to emphasize a main point he argued in briefs: “Under Roe and Casey, the Judiciary mows down state law after state law, year after year, on a critical policy issue. That is dangerously corrosive to our constitutional system.”

He’ll be followed by Julie Rikelman, the senior director at the Center for Reproductive Rights, arguing on behalf of Jackson Women’s Health Organization, the last abortion clinic in the state.

In March 2020, Rikelman won a case striking down a Louisiana abortion law when Chief Justice John Roberts sided with the liberals on the court. That, however, was before the court’s makeup changed with the death of Justice Ruth Bader Ginsburg and confirmation of Amy Coney Barrett.

After Rikelman, Solicitor General Elizabeth Prelogar, a former clerk to Ginsburg and Justice Elena Kagan, will step up in support of the clinic.

Prelogar, the Biden administration’s top lawyer before the Supreme Court, said in legal papers that the justices should consider what would happen if they decided to return the issue to the states. “The effects are likely to be felt most acutely by young women, women of color, and those of lesser means, further diminishing their opportunities to participate fully and equally in the Nation’s social and economic life,” she said.

Because Mississippi brought the challenge, Stewart will have the chance to return to the podium.

Arguments are scheduled to last for 70 minutes, but if past is precedent, the court will go into overtime.

Which justices are key?

Thomas has repeatedly urged the court to overturn Roe v. Wade, saying there is no right to an abortion found in the Constitution. Earlier this year, he was praised for his position on “unborn life” by Senate Minority Leader Mitch McConnell, a Kentucky Republican.

When the justices agreed to hear the case last May after months of closed-door deliberations, the question they agreed to decide was whether “all pre-viability prohibitions on elective abortion are unconstitutional.”

But when Mississippi filed its opening brief it went much further, asking the justices to overturn Roe and Casey. Some justices might see that as a bait and switch forcing them to address a much bigger question. Watch Roberts, who might express institutional concerns with overturning a decision from so long ago.

All eyes will also be on Barrett, whose vote to take up the case was likely critical. The court now includes three of former President Donald Trump’s nominees — recall that Trump vowed to appoint “pro-life” judges.

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