Mississippi asks Supreme Court to overturn Roe v. Wade to maintain state restrictions on access to abortion, and to waive the court’s landmark ruling half a century ago that the Constitution protects a woman’s right to obtain an abortion.
The state’s bold demand is in a brief filed Thursday that seeks to convince the court it should approve a law that would ban most abortions after 15 weeks of pregnancy, much earlier than expected.
The court will hear arguments in the case this fall, and both sides in the divisive struggle see it as a pivotal time in determining whether and how the court’s conservative 6-3 majority might restrict abortion rights.
Mississippi Republican Attorney General Lynn Fitch said in the record that the court should overturn his 1973 ruling in Roe and a subsequent approval of abortion rights in 1992 in Planned Parenthood v. Casey. The ruling said states cannot place an undue burden on a woman’s right to choose an abortion before fetal viability, which is generally considered to be between 24 weeks or more.
“Roe and Casey are unprincipled decisions that have harmed the democratic process, poisoned our national discourse, obstructed the law – and in so doing undermined this Court,” the brief reads.
“Nothing in the constitutional text, structure, history or tradition supports a right to abortion,” said the brief. And so states should be free even to ban elective abortions as long as they show the ban promotes a legitimate government interest, Fitch writes.
The court, of course, is free to reject the state’s argument or decide the case on much narrower grounds. But the brief emphasizes the potential presented in Dobbs v. Jackson Women’s Health Organization, the most direct abortion rights challenge to the Supreme Court in decades.
Judges have deliberated privately for months on whether to revise the law, which lower courts have not allowed to come into force. The Supreme Court announced in May that it was accepting the case to decide “whether all predictability bans on elective abortions are unconstitutional.”
This is the line that has been drawn in court precedents and cited across the country by judges who have struck down one state after another that tried to ban abortions earlier in pregnancy.
“In an unbroken line dating back to Roe v. Wade, the Supreme Court’s abortion cases established (and confirmed and reaffirmed) a woman’s right to choose an abortion before viability,” wrote Justice Patrick E. Higginbotham for the United States Court of Appeals for the 5th Circuit majority which refused to allow Mississippi law.
When the court announced its decision to review the decision, Nancy Northup, president of the Center for Reproductive Rights, said it did not bode well for her.
“Alarm bells are ringing loud about the threat to reproductive rights,” Northup said at the time. “The Supreme Court has just agreed to consider an abortion ban that clearly violates nearly 50 years of Supreme Court precedent and is a test case to overturn Roe v. Wade.”
Northup’s organization represents the Jackson, Mississippi organization, the state’s only abortion clinic. His brief is due to be presented to the Supreme Court in September.
The Supreme Court is expected to hear the arguments in November or December. A decision next year would come in the middle of the midterm legislative elections.
In a press release Thursday, Fitch said “it is time for the court to settle this law and refer this political debate to the political branches of government.”
In her memoir, she says that Roe and Casey “hold on to a view of the facts that has been outdated for decades.” And she adds: “Abortion jurisprudence has placed this Court at the center of a controversy that it will never be able to resolve.
The brief says changes in society and science have plagued Roe.
“Today, adoption is accessible and on a large scale, women achieve both professional success and a rich family life, contraceptives are more available and effective, and scientific advances show that an unborn child has taken on human form and presents itself months before its viability, ”the brief states.
He rejects the argument that reproductive control is essential to what Judge Ruth Bader Ginsburg once called “a woman’s autonomy to determine the course of her life, and thus to enjoy a status of equal citizenship ”.
Instead, the Mississippi memoir says, “Countless women and mothers have reached the highest echelons of economic and social life, regardless of the entitlement endorsed in” Roe and Casey.
Mississippi passed the law in 2018. It would ban abortions after 15 weeks, with few exceptions or in the event of a medical emergency or severe fetal abnormality. (The state also has a court-blocked law restricting abortions after six weeks, and a so-called “trigger” provision that would ban the abortion if Roe were canceled.)
The provisions are aimed at a court apparently more skeptical of its abortion case law.
In the last term, the court struck down a Louisiana law that targeted abortion clinics by 5-4, with Chief Justice John G. Roberts Jr. siding with the Liberals in court. It was the first time the chief justice had banned abortion, but Roberts said his vote was only meant to honor a precedent – the court a few years earlier had struck down a nearly identical Texas law.
Ginsburg, who was in the two majorities, died last September. She was replaced by Justice Amy Coney Barrett, who made her personal opposition to abortion clear and, as a law professor, criticized Roe.
President Donald Trump predicted that his three court candidates would oppose Roe. Justices Neil M. Gorsuch and Brett M. Kavanaugh voted to allow Louisiana law to come into force.
Still, overturning a precedent as deeply rooted in audiences as Roe is a major demand.
As an alternative, Mississippi said the court could reduce the scrutiny abortion laws must meet and find that Mississippi law meets legitimate goals such as unborn child protection, health women or the medical profession.
He might find that not all pre-viability abortions are unconstitutional, the state said, or that the 15-week restriction does not place an undue burden on a substantial number of women.
Studies show that over 90 percent of abortions are performed in the first trimester. And the Jackson Clinic does not perform abortions after 16 weeks, so the law “reduces by just one week the time that abortions are available in Mississippi,” the record says.