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‘Roe’ Hangs in Balance as Supreme Court Agrees to Hear Mississippi Abortion Arguments On Dec. 1

The US Supreme Court justices
The U.S. Supreme Court will hear oral arguments for Dobbs v. Jackson Women’s Health Clinic on Dec. 1. The case has the potential to be a landmark decision that formally overturns Roe v. Wade and ends the federally protected right to an abortion in the United States. Photo courtesy U.S. Supreme Court

The U.S. Supreme Court has scheduled Dec. 1, 2021, oral arguments for the term’s most significant abortion case—Dobbs v. Jackson Women’s Health Organization. The Mississippi lawsuit aims squarely at the heart of the landmark Roe v. Wade precedent that has prohibited total abortion bans across the United States since 1973.

Mississippi Attorney General Lynn Fitch celebrated the announcement in a press release today, restating Mississippi’s case that the Roe precedent “shackles states to a view of facts that is decades old, such that while science, medicine, technology, and culture have all rapidly progressed since 1973,” Fitch stated, “With Dobbs, the Supreme Court can return decision-making about abortion policy to the elected leaders and allow the people to empower women and promote life.”

Jackson Women’s Health Organization Director Shannon Brewer in a floral dress
Jackson Women’s Health Organization Director Shannon Brewer explains abortion access as an equity issue. ” A woman who is denied an abortion is more likely to live in poverty even years later.” Photo by Ashton Pittman

Shannon Brewer, director of Jackson Women’s Health Organization, Mississippi’s only active abortion clinic and the institution in the crosshairs of this case, wrote in an op-ed earlier this year that overturning Roe would have the exact opposite effect.

“Abortion is absolutely a racial and economic justice issue. … The laws are inherently racist and classist; they keep Black and brown people down. And the research is clear: A woman who is denied an abortion is more likely to live in poverty even years later,” Brewer wrote.

‘The Right to Life from Fertilization’

Dobbs will be the first abortion case to receive a formal hearing before the Supreme Court after the death of Justice Ruth Bader Ginsburg, a liberal stalwart and consistent defender of abortion rights. Ginsburg’s replacement, Amy Coney Barrett, has a history of anti-abortion sentiment. In 2006, she signed an endorsement of “the right to life from fertilization to natural death.”

The tension surrounding Dobbs v. Jackson Women’s Health Clinic only grew this month when the U.S. Supreme Court allowed the enforcement of a Texas law that banned the vast majority of abortions in the state. In responding to the case—Whole Woman’s Health v. Jackson—the court declined to rule on the constitutionality of the law, which set up a $10,000 bounty for private individuals to hunt down abortion providers for litigation, as well as those who “aid or abet” the procedure. 

By allowing the law to go into effect while lower courts continue to litigate it, the Supreme Court signalled a new era of abortion-rights skepticism. The decision to decline placing an emergency hold on the law was 5-4 with Barrett joining the majority.

Lynn Fitch headshot
(Mississippi Attorney General Lynn Fitch is using the 15-week abortion ban of the Gestational Age Act to aim squarely at Roe v. Wade, attempting to end the nation’s ban on restrictions against pre-viability abortions. Photo courtesy Lynn Finch

In 2020, the U.S. Supreme Court struck down a 2014 law from Louisiana that would have shut down virtually all of the state’s abortion clinics, affirming the fundamental logic beneath Roe. But the decision was 5-4, with Chief Justice John Roberts concurring with Ginsburg and the other liberals on the court. Now, even the assent of Roberts would not be enough to prevent the conservative wing of the post-Trump court from upending half a century of precedence.

A federal court originally blocked the 2018 law at the heart of the Dobbs case, the Gestational Age Act, which bans abortion after 15 weeks of gestation. While much of the language in the bill addresses the development of the fetus in the womb toward “the human form,” the State of Mississippi’s petition to the Supreme Court makes it clear that the goal is demolishing the central tenet of Roe, which prevents restricting abortion before fetal viability, occurring around 23 weeks. 

“Under the Constitution, may a State prohibit elective abortions before viability?” the State of Mississippi asks in its brief. “Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. … Roe and Casey (v. Planned Parenthood) are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.”

In the absence of Roe, Mississippi has trigger laws that will significantly restrict abortion beyond the 15-week ban in the Gestational Age Act. In 2019, Gov. Phil Bryant signed a fetal heartbeat law intended to ban abortion after six weeks of gestation, many months before fetal viability. Judge Carlton Reeves blocked that law, and the 5th U.S. Circuit Court of Appeals upheld his decision, but the logic of Roe and Casey undergird those decisions.

Centers for Disease Control data show that more than 92% of abortions “were performed at ≤13 weeks’ gestation,” meaning Mississippi’s 15-week abortion ban’s real impact could be the banning of abortions far outside the scope of its language.

Without Roe, Mississippi’s tenuous abortion access is likely doomed. “Some states, including California and New York, have laws protecting abortion rights,” Brewer wrote. “(But) the laws in Mississippi are designed to make abortion hard to get and to make clinics like mine harder to operate. There are now five states with just one remaining abortion clinic.”

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