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Mississippi abortion ban tees up Supreme Court to overturn Roe v. Wade

Working to overturn Roe v. Wade since it was read from the bench in 1973, anti-abortion groups will mount their best chance to do just that on Dec. 1 before the supermajority-conservative Supreme Court. 

Shannon Brewer, who is director of the last remaining abortion provider in Mississippi, Jackson Women’s Health Organization, said this one worries her the most, of all the challenges abortion has faced over the years.

“I've been asked a lot of times if this is a scary thing that's going on just like all the other cases we've done over the years, and the other cases have worried me but not to the point of this one,” Brewer told reporters in a call leading up to next Wednesday's arguments. “This case has worried me more than any other one because I know this is going to be detrimental to women, not only here in Mississippi, but in so many states — especially the southern states — because believe me if they decide to do it, most of the southern states are going to ban abortion immediately.” 

Jackson Women's Health mounted its challenge of the Gestational Age Act on the day Republican Missouri Governor Phil Bryant signed it into law in 2018. They have prevailed at every turn: first with a permanent injunction from a federal judge who called the law unconstitutional and said its defense in court was a waste of taxpayer dollars. The Fifth Circuit affirmed in December 2019, two months after oral arguments, setting the stage for a Supreme Court showdown

Thomas E. Dobbs, the state health officer of the Mississippi Department of Health, asked the court to consider a series of questions related to the case, but the court narrowed the case to one issue: the constitutionality of prohibiting elective abortions before a fetus is viable. 

The court first announced a woman’s constitutional right to an abortion with Roe v. Wade in 1973, focused on the right to privacy in the 14th Amendment. Nearly 20 years later then, in the 1992 case Casey v. Planned Parenthood, it implemented what's known as a "viability analysis," giving states the power to regulate abortions of a fetus that could survive outside of the womb.

Dobbs did not ask the court to overturn Roe and Casey precedents in his original petition, however, once the court narrowed the scope, he explicitly asked just that. In his brief, he calls the cases “egregiously wrong” and even broke with precedent. 

Roe and Casey are thus at odds with the straightforward, constitutionally grounded answer to the question presented,” Dobbs said in his brief. “So the question becomes whether this Court should overrule those decisions. It should. The stare decisis case for overruling Roe and Casey is overwhelming.” 

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Nancy Northup, president and CEO at the Center for Reproductive Rights, said if Roe was overturned, half of the states across the country would likely ban abortions — a procedure utilized by one in four women in the United States.

“If Mississippi's bid to have Roe v. Wade overturned is granted in the Supreme Court, we expect about half the states in the United States to recriminalize abortion and that would be devastating to people across the country who need access to those services,” Northrup told reporters. 

Banning abortions could not only force women to carry unwanted pregnancies, but it would also create issues for women who have miscarriages. 

“It's important to remember that if abortion is a crime, that every miscarriage is possibly a crime scene,” Northrup said.

Dobbs bases his case on the claim that abortion is not constitutionally protected, and said states should have the right to regulate the practice as they like. 

“The Constitution does not protect a right to abortion,” his brief states. “The Constitution’s text says nothing about abortion. Nothing in the Constitution’s structure implies a right to abortion or prohibits states from restricting it.

"A right to abortion is not a ‘liberty’ that enjoys substantive protection under the Due Process Clause.” 

Dobbs claims Roe and Casey precedents have inflicted severe damage to the judiciary. 

“This court’s precedents wall off too many options and force people to look to the judiciary to solve the abortion issue — which, 50 years shows, it cannot do,” Dobbs writes. 

Abortion has become a divisive political issue in the country, Dobbs said, pointing to its consumption of the national discourse, confirmation hearings and many cases before the court. 

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“The national fever on abortion can break only when this court returns abortion policy to the states — where agreement is more common, compromise is often possible, and disagreement can be resolved at the ballot box,” the brief states. 

Dobbs claims that the various alternatives to abortion that exist undercut claims that women need access to abortions to have equal opportunities to advance in society. His brief suggests women have more access to contraceptives than they did when Roe was decided or can give their children up for adoption. 

“Today, adoption is accessible and on a wide scale women attain 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 the human form and features months before viability,” the brief states. “States should be able to act on those developments. But Roe and Casey shackle states to a view of the facts that is decades out of date.”

Julie Rikelman, senior director of litigation at the Center for Reproductive Rights and counsel representing Jackson in the case, called abortion critical to women’s equal protection in society. 

“People rely on the fact that they will be able to decide when, if, and how many kids they have, not the state,” Rikelman told reporters. “It won't be the state where they live, who makes this decision for them, and that's just been critical to people being able to structure their lives, control the course of their lives in so many different ways. So it is critical to women's equality, and it is just not tenable to say that taking away this right will not propel women backward.” 

While Dobbs argues that the courts should overturn Roe to unclog the backlog of cases already presented to them, Rikelman says such a ruling would actually cause more chaos for the judiciary. She cites Texas’ near-complete ban of abortions, a case that went before the high court already this term, as an example of what this would look like. 

“Taking away this right will lead to chaos and harm, both for people who need access to abortion but also for the courts — even for states that tried to preserve the right to abortion,” Rikelman said. “Really the best evidence of that is what's been happening in Texas.” 

Rikelman said the Mississippi ban is unconstitutional because it prohibits abortions before viability, which violates not only Roe and Casey but the court’s more recent decision in June Medical: a 5-4 decision last year against a law that required doctors performing abortions to hold admitting privileges at hospitals. 

Jackson’s brief argues that the court should reject Mississippi’s case to preserve confidence in the judiciary. 

“Unless the court is to be perceived as representing nothing more than the preferences of its current membership, it is critical that judicial protection hold firm absent the most dramatic and unexpected changes in law or fact,” Rikelman wrote in her brief

The American Bar Association also makes this point in an amicus brief that says overturning Roe would undermine the rule of law and gender equality. 

“The revocation of such a right would be unprecedented,” the brief states. “It would be a devastating repudiation of stare decisis, jeopardize the public’s faith in our legal institutions, and have a cruel effect on the lives and expectations of millions of women. The ABA urges this court not to take that perilous step, and instead reaffirm the rule of law by adhering to its longstanding precedent on this issue.” 

The Mississippi law would ban all abortions after 15 weeks — Jackson Women’s Health Organization currently performs abortions up to 16 weeks — but Rikelman said focusing on that number would be a mistake in this case. 

“Mississippi has gone to the court … and asked the court to overrule Roe entirely, defined that there is no right whatsoever to abortion in the constitution, the constitution doesn't protect this right in any way, and as a result, what Mississippi is really asking is for states to be able to ban abortion entirely or at any stage of pregnancy that they want,” Rikelman said. “So the 15-week mark of this particular law is really not relevant and shouldn't be the focus of folks who are trying to understand the impact of this decision.”

One claim Mississippi makes for enacting the ban at 15 weeks, is that a fetus has the capacity to feel pain at that time in development. An amicus brief by the March for Life Education and Defense Fund claims scientists have “observed fetal reactions to painful stimuli as early as 7.5 weeks gestation.” 

However, the Society for Maternal-Fetal Medicine, the Royal College of Obstetricians and Gynaecologists, the U.S. Association for the Study of Pain, and 27 scientific and medical experts filed an amicus brief disputing these findings. They say the expert the state cites to back its findings that fetuses can feel pain before viability has no clinical experience providing pain management, maternal or fetal care in any capacity, has no peer-reviewed publications on fetal pain, and has never conducted research on the topic. 

Their brief explains that “reactions” do not represent actual pain. 

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“Infants born with anencephaly (lacking part of the brain and skull) and individuals in a vegetative state can both exhibit nociceptive reflexive withdrawal, but cannot experience pain,” their brief explains (parentheses in original). “The stimulus requires transmission to the cortex in order to be perceived as pain. Even in an individual with a complete spinal cord transection, a noxious stimulus to the leg can provoke reflexive movement, but the individual will not experience pain.” 

The brief goes on to say that peer-reviewed research proves that development of the cortex — which does not occur before 24 weeks — is essential for feeling pain. 

Members of Congress have weighed in on the case with 236 members — among them, Speaker of the House Nancy Pelosi and Senate Majority Leader Charles Schumer — filing an amicus brief in support of Jackson. They state that the only thing that has changed since the court decided Casey is the court’s members, which have never before been a reason to overturn precedent. 

“Adherence to Roe and Casey is important for another reason: to reaffirm this court’s commitment to stare decisis and the rule of law,” their brief states. “In turbulent times in our nation’s history, including the present times in which we live, respect for the rule of law has been critical to our nation’s resilience and vitality. Stare decisis is a bedrock principle of the rule of law. And preserving respect for the rule of law is an elemental judicial task.” 

Three Republican senators — Josh Hawley, Mike Lee and Ted Cruz — filed a brief in support of the ban claiming Roe and Casey were “unworkable and unpredictable precedents.” 

Proponents of the abortion right say bans like that of Mississippi will not prevent the practice but instead just make it less safe. An amicus brief from Human Rights Watch, the Global Justice Center and Amnesty International says unsafe abortions are one of the leading causes of maternal mortality and morbidity. 

“The lesson for this case is clear: If an abortion ban like H.B. 1510 is upheld, more women in Mississippi are likely to die,” the brief states. 

If the court were to overturn Roe, abortion providers say low-income and minority women would be impacted the most. 

“You just shouldn't be able to have access to an abortion only based off on where you live or how much money you make and what access you have, but right now in the United States, that's what's going on,” Brewer said.

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An abortion rights advocate voicing her opposition to state legislatures passing abortion bans that prohibit most abortions once a fetal heartbeat can be detected. In addition, there are no provisions for rape or incest. Mississippi is among the states that have passed and signed into law such legislation.

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