The Washington Post

Of a Mississipp­i abortion law took on greater significan­ce after the Supreme Court allowed a more restrictiv­e Texas law.

Case takes on greater significan­ce after justices let Tex. law go into effect

- BY ROBERT BARNES robert.barnes@washpost.com

Abortion providers told the Supreme Court on Monday that approving a Mississipp­i law that bans most abortions after 15 weeks would “scuttle a halfcentur­y of precedent and invite states to ban abortion entirely.”

They said in their brief that Mississipp­i’s request that the court overturn its 1973 decision in

Roe v. Wade was based on the state’s hope that a “changed compositio­n” of the court would reject years of legal precedent.

To do so, said lawyers for the state’s only abortion clinic and a doctor, would be to “abandon a rule of law that this Court has said uniquely implicates the country’s ‘confidence in the Judiciary.’ ” The quoted statement is from the court’s 1992 decision in Casey v. Planned Parenthood, in which the court upheld the essential holding of Roe and said states may not impose an undue burden on a woman’s right to the procedure.

The court’s review of the Mississipp­i law, which prohibits almost all abortions after 15 weeks of gestation, has taken on even more significan­ce since the Supreme Court earlier this month let a more restrictiv­e Texas law go into effect.

The court said it was not ruling on the constituti­onality of that law, which authorizes private citizens to sue those who aid or abet an abortion after six weeks, only whether challenger­s had made a proper showing it should be stopped before taking effect.

Still, the 5-to-4 decision indicated the increasing­ly conservati­ve court is more open to altering decades of Supreme Court precedents.

Since Justice Amy Coney Barrett replaced the court’s most outspoken advocate of abortion rights, the late Justice Ruth Bader Ginsburg, the court now has a 6-to-3 conservati­ve majority. As a law professor, Barrett criticized

Roe.

Mississipp­i argues that its law can be upheld without directly repudiatin­g Roe and Casey. But after the change in the court’s makeup, the state last month boldly called for overruling both precedents.

“Roe and Casey are unprincipl­ed decisions that have damaged the democratic process, poisoned our national discourse, plagued the law — and, in doing so, harmed this Court,” Mississipp­i Attorney General Lynn Fitch (R) wrote in her brief.

Mississipp­i’s law has never gone into effect. Lower courts ruled the ban violates the court’s decision in Roe, which said states may regulate abortion but not ban the procedure before the fetus reaches viability, which is usually defined as 22 to 24 weeks of gestation.

The question the Supreme Court accepted is this: “Whether all pre-viability prohibitio­ns on elective abortion are unconstitu­tional.”

The Center for Reproducti­ve Rights, which is representi­ng the Jackson Women’s Health Organizati­on, said there would be massive repercussi­ons if the court answered no.

“Accepting Mississipp­i’s request to abandon the viability line would turn back the clock for generation­s who have never known what it means to be without the fundamenta­l right to make the decision whether to continue a pregnancy,” the center said in its brief.

“Any answer to the question presented other than a categorica­l ‘yes’ would shatter the understand­ing women have held close for decades about their bodies, their futures, and their equal right to liberty.” Removing the pre-viability line, the clinics said, would open a “cascade” of state laws that set restrictio­ns earlier and earlier, or even banned abortion.

“As abortion bans are enforced — or the threat of enforcemen­t looms — large swaths of the South and Midwest would likely be without access to legal abortion,” the brief said. “Some people with the means to travel may be able to access legal abortion — but only after crossing multiple state lines.”

Others would resort to illegal abortions, the clinic said, or be forced to continue pregnancie­s they do not want or cannot afford.

In a statement Monday, Fitch said the clinic’s lawyers did not try to defend the original Roe decision.

“Nothing in constituti­onal text, structure, history, or tradition supports a constituti­onal right to abortion, nor is there a sound basis for the current viability guidepost that determines when states can enact limitation­s on abortion,” she said. “It is time to return policymaki­ng to the people where they can address abortion policy in a way that empowers women and promotes life.”

The state’s brief said the court’s abortion jurisprude­nce puts it “at the center of a controvers­y that it can never resolve,” and that changes in society and science have undermined Roe.

“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.

It dismisses the argument that reproducti­ve control is essential to what Ginsburg once called “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenshi­p stature.”

The clinic offers a rebuttal, saying no medical advance in the past 50 years has changed what scientists and doctors see as the point of viability, and saying that abortion is safer than childbirth.

“The comparativ­e risk is even higher in Mississipp­i, where it is about 75 times more dangerous to carry a pregnancy to term than to have an abortion,” the brief states.

It noted two generation­s have never been without the right to terminate a pregnancy.

“The key insight of Casey and Roe is that the decision whether to end a pregnancy has deep constituti­onal roots in the fundamenta­l rights to bodily integrity and personal autonomy in matters of family, medical care, and faith,” the clinic brief said.

“Resolving now to allow the government to control this intimate personal decision to the same extent as ordinary economic and social regulation would result in a radical displaceme­nt of personal liberty in favor of the power of the state.”

In a nod to modernity, the brief says in a footnote: “Although the term ‘ women’ is used here and elsewhere, people of all gender identities may also become pregnant and seek abortion care.”

The overwhelmi­ng majority of abortions are performed in the first trimester, and the Jackson clinic provides abortions only up to 16 weeks. It says about 100 women annually have abortions in that week between what the law would prohibit and the clinic allows.

But it said that did not mean the change was insignific­ant, the brief argues. Mississipp­i’s current law allows abortions up to 20 weeks, but it has also passed a law that would ban the procedure after six weeks. If Roe is overturned, it has a law that would prohibit the procedure entirely.

The court has not yet scheduled arguments for Dobbs v. Jackson Women’s Health Organizati­on. But it will not be before Nov. 29, as the court’s calendar before then already has been set.

 ?? BONNIE JO MOUNT/THE WASHINGTON POST ?? Patient escort Derenda Hancock stands outside the Jackson Women’s Health Organizati­on, the only abortion clinic in Mississipp­i, in June. The Supreme Court will review a Mississipp­i law that bans most abortions after 15 weeks. The law has never gone into effect.
BONNIE JO MOUNT/THE WASHINGTON POST Patient escort Derenda Hancock stands outside the Jackson Women’s Health Organizati­on, the only abortion clinic in Mississipp­i, in June. The Supreme Court will review a Mississipp­i law that bans most abortions after 15 weeks. The law has never gone into effect.

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