Mississippi Attorney General Lynn Fitch today urged the U.S. Supreme Court to overrule Roe v. Wade, the landmark 1973 decision that upheld a woman’s right to an abortion before fetal viability. The brief is part of Dobbs v. Jackson Women’s Health Organization, a case the nation’s high court is set to hear in the fall over Mississippi’s 15-week abortion ban.
The Roe decision and a 1992 ruling that upheld abortion rights, Planned Parenthood v. Casey, are “egregiously wrong,” the State said in a Supreme Court filing today, adding that “both recognize a right that has no basis in the Constitution.”
“It is time for the Court to set this right and return this political debate to the political branches of government,” Fitch said in a statement today.
In Fitch’s filing, she invoked stare decisis, a legal doctrine that says courts should follow precedents set by earlier rulings when making decisions. A Jackson federal judge in 2018 and the 5th U.S. Circuit Court of Appeals in 2019 struck down the 15-week ban based on a stare decisis reading of the Roe and Casey precedents. But these precedents, Fitch argued, were wrongly decided.
“So the question becomes whether this Court should overrule those decisions. It should,” the Mississippi brief says. “The stare decisis case for overruling Roe and Casey is overwhelming.”
Case Could Have Major National Repercussions
The language in the brief is an escalation from language Fitch used in earlier briefings that focused on whether the courts should reassess its “pre-viability” test for whether or not an abortion restriction is constitutional.
Mississippi’s only abortion clinic, the Jackson Women’s Health Organization, only performs abortions until 16-weeks gestation, though an older Mississippi law that remains in effect limits abortion after only 20 weeks.
JWHO sued the State of Mississippi over the 15-week ban in 2018. Lawmakers then passed a “heartbeat law” banning abortions once a fetus’ heartbeat becomes detectable, which happens at around six weeks. Federal and appeals courts blocked both laws from taking effect.
Abortion-rights groups fear the Dobbs case could result in major limitations or outright bans on abortion in states across the nation. Anti-abortion groups, meanwhile, are hopeful that former President Trump’s appointees will issue just such a sweeping ruling. Two of the justices Trump replaced, Anthony Kennedy and Ruth Bader Ginsburg, were key votes to uphold abortion rights in past cases.
Fitch, the first woman to serve as Mississippi’s attorney general, said in her statement today that five decades of social advancement for women since 1973, such as prohibitions on sex and pregnancy discrimination in employment and childcare support, serve to show how much has changed since the time of Roe.
“In 1973, there was little support for women who wanted a full family life and a successful career. Maternity leave was rare. Paternity leave was unheard of. The gold standard for professional success as a 9-to-5 with a corner office,” she said. “The flexibility of the gig economy was a fairytale. In these last fifty years, women have carved their own way to achieving a better balance for success in their professional and personal lives.
“By returning the matter of abortion policy to state legislatures, we allow a stunted debate on how we support women to flourish. It is time for the Court to let go of its hold on this important debate.”
Nancy Northup, the president of the Center for Reproductive Rights which is representing JWHO in the Dobbs case, characterized Fitch’s brief as shocking in a statement today.
“Mississippi has stunningly asked the Supreme Court to overturn Roe and every other abortion rights decision in the last five decades. Today’s brief reveals the extreme and regressive strategy, not just of this law, but of the avalanche of abortion bans and restrictions that are being passed across the country,” she said. “Their goal is for the Supreme Court to take away our right to control our own bodies and our own futures—not just in Mississippi, but everywhere.”
Barrett Decision May Be Pivotal
Justice Ginsburg’s replacement, Amy Coney Barrett, is a conservative Catholic with a history of endorsing anti-abortion causes, including the langauge of “personhood.” In 2011, Mississippians voted against the Personhood Amendment, a 2011 ballot initiative that would have defined the word “person” to mean “every human being from the moment of fertilization, cloning, or the equivalent thereof.” A majority of Mississippi voters—58%—rejected it, though.
During her confirmation hearings last year, Barrett refused to say whether she believed the 1965 Supreme Court case Griswold v. Connecticut, which struck down state laws banning contraception, was rightly decided. She did say she did not believe legal contraception was “in danger of going anywhere” because it is “unthinkable any legislature would pass such a law.”
Barrett also refused to say whether she believed Roe v. Wade was rightly decided, either.
But on Oct. 1, 2020, The Guardian reported that Barrett and her husband, Jesse Barrett, once signed their names to an ad in the South Bend Tribune with the St. Joseph County Right to Life organization—a group that opposes not only abortion, but also in-vitro fertilization.
“We, the following citizens of Michiana, opposed abortion on demand and defend the right to life from fertilization to natural death. Please continue to pray to end abortion,” reads the 2006 ad, evoking language similar to that used in Mississippi’s 2011 Personhood initiative.
Barrett also hinted during a 2013 speech at Notre Dame University, where she was a faculty member at the time, that she may be open to “state’s rights” arguments about abortion laws.
In January 2013, The Irish Rover, another campus publication, reported that Barrett said during her speech that month that “whether or not Roe gets overturned is irrelevant,” because the issue would then return to the states.
“If the Court doesn’t (overturn Roe), where does this leave the state?” the Irish Rover reported Barrett saying, citing state-level abortion restrictions like ultrasound requirements, waiting periods and parental consent laws.
Fitch: ‘A Special-Rules Regime for Abortion’
In a statement today, Mississippi’s attorney general asked the Supreme Court to “return the matter to legislators, not judges.”
“There are those who would like to believe that Roe v. Wade settled the issue of abortion once and for all,” Fitch said. “But all it did was establish a special-rules regime for abortion jurisprudence that has left cases out of step with other court decisions and neutral principles of law applied by the court. As a result, state legislatures and the people they represent have lacked clarity in passing laws to protect legitimate public interests and artificial guideposts have stunted important public debate on how we, as a society, care for the dignity of women and their children.
“… The national fever on abortion can break only when this court returns abortion policy to the states—where agreement is more common, compromise is more possible, and disagreement can be resolved at the ballot box.”
In Northup’s statement today, she said that “any ruling in favor of Mississippi in this case” would overturn Roe’s core holding that women have “the right to make a decision about whether to continue a pregnancy before viability.”
“If Roe falls, half the states in the country are poised to ban abortion entirely. Women of child-bearing age in the U.S. have never known a world in which they don’t have this basic right, and we will keep fighting to make sure they never will,” she said.
The “Dobbs” in Dobbs v. Jackson Women’s Health Organization refers to Mississippi State Health Officer Dr. Thomas E. Dobbs. That is only a formality because the law in question deals with health-care regulations, and he is the head of the Mississippi State Department of Health.
The name of his predecessor, former State Health Officer Mary Currier, originally appeared on the document. Neither health leader was actively involved in the state’s defense of either abortion ban.
The Supreme Court will hear the case on Mississippi’s 15-week abortion ban after its next term begins in October. A ruling would likely come sometime in 2022 in the midst of next year’s congressional midterm elections.