DemDaily: Rolling Back Roe

July 26, 2021

Mississippi officials submitted their first briefs to the US Supreme Court last week in their calculated quest to roll back women's reproductive rights in the United States.

In May, the Supreme Court of the United States (SCOTUS) agreed to hear a case involving the Gestational Age Act, a Mississippi law passed in 2018, which would ban all abortions after 15 weeks of pregnancy with only limited exceptions for medical emergencies or severe fetal abnormalities.

In taking up the case, Dobbs v. Jackson Women's Health Organization, the US Supreme Court said it would consider whether "all pre-viability prohibitions on abortion are unconstitutional." The breadth of the question represents the greatest threat yet to a women's right to abortion since it was legalized under the Court's 1973 Roe v. Wade decision.

In Roe v. Wade, the US Supreme Court ruled that the right to privacy under the Due Process Clause of the 14th Amendment extended to a woman's constitutional right to abortion.

(Guttmacher Institute)

The ruling, however, did not make this right absolute, in that it still gave states the right to regulate the practice in the third trimester of pregnancy.

Status of the States
Although the fundamental legality of abortion under Roe remains intact, many states have since successfully passed laws to restrict late-term abortions, implement mandatory waiting periods, require parental notification, and limit public funding of abortion providers, among other acts.

Since the landmark decision took effect almost fifty years ago, over 1,320 abortion restrictions have been enacted across the states.

In 2021 alone, 97 restrictions have been enacted across 17 states as of July 15th.

According to the Guttmacher Institute, 21 states are hostile or very hostile to abortion rights, with another eight "leaning" hostile. Of those, 12 states have "trigger" laws that would automatically make abortion illegal if the US Supreme Court reverses Roe.

This means that about 40 million, or 58% of American women of reproductive age live in states that are at least somewhat hostile to abortion rights.

Mississippi's Mission
Mississippi is one of several Republican-led states that have passed restrictive abortion laws designed to directly challenge the constitutionality of Roe v. Wade.

The sign at Jackson Women's Health Org, Mississippi's sole remaining abortion clinic, bears evidence of BB gunshots (AM Cunningham/MCIR)

The Southern District of Mississippi noted as such in his November 2018 decision to block the Gestational Age Act, stating, "The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade."

The US Court of Appeals for the 5th Circuit affirmed the ruling in February of 2020, writing, "In an unbroken line dating to Roe v. Wade, the Supreme Court's abortion cases have established (and affirmed, and reaffirmed) a woman's right to choose an abortion before viability."

The State of Mississippi appealed to SCOTUS, arguing its law complied with existing precedent, and that the court should only overturn Roe if it concluded there was no other way to uphold the state law.

Last week, however, Mississippi reframed its argument, expanding it to take direct aim at the constitutionality of Roe, contended it was "egregiously wrong," and "The conclusion that abortion is a constitutional right has no basis in text, structure, history or tradition."

Nancy Northup, President of the Center for Reproductive Rights, which represents Jackson Women's Health Organization, said that Mississippi'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...If Roe falls, half the states in the country are poised to ban abortion entirely." 

SCOTUS
The decision to grant certiorari, or to hear, Dobbs, however, sets an unprecedented stage for the US Supreme Court's newly emboldened 6-3 conservative majority to reconsider, if not reverse, Roe's precedent.

Northrop: "Women of child-bearing age in the U.S. have never known a world in which they don't have this basic right" (J.Martin/AP)

The justices spent months deciding whether or not to take the case, underscoring the deep divisions on the bench.

Prior to the October 2020 Trump appointment of conservative Justice Amy Barrett, who has spoken out against "abortion on demand," the outcome largely rested on Chief Justice John Roberts as the swing vote.

In past opinions Roberts has cited respect for stare decisis, the legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case, while also opening the door to an incremental approach on cutting back on abortion rights.

Under the new 6-3 majority, however, it is unclear if Roberts, as chief negotiator, may still be able to craft an opinion that undercuts Roe without directly overturning it -- or if he wishes to.

SCOTUS will hear oral arguments on the case in October when the court, now on summer recess, begins its 2021-2022 term. Their decision is likely to be delivered next summer, as we go into the final months of the 2022 midterm elections.

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Kimberly Scott
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Sources: supremecourt.gov, SCOTUSblog, Guttmacher Institute, USAToday, New York Times

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