The court will hear arguments in the case this fall, and both sides in the divisive fight see it as a crucial moment in determining whether and how the court’s 6-to-3 conservative majority might constrain abortion rights.
Mississippi’s Republican attorney general, Lynn Fitch, said in the filing that the court should junk its 1973 ruling in Roe and a subsequent 1992 endorsement of abortion rights in Planned Parenthood v. Casey. That decision said states may not place an undue burden on a woman’s right to choose an abortion before fetal viability, which is generally thought to be after 24 weeks or later.
“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,” the brief states.
“Nothing in constitutional text, structure, history, or tradition supports a right to abortion,” the brief states. And thus states should be free even to ban elective abortions so long as they show the prohibition promotes a legitimate government interest, Fitch writes.
The court, of course, is free to reject the state’s argument, or to decide the case on much narrower grounds. But the brief emphasizes the potential presented in the case, Dobbs v. Jackson Women’s Health Organization, the most direct challenge to abortion rights at the Supreme Court in decades.
Nancy Northup, president and CEO of the Center for Reproductive Rights, said Mississippi was employing an “extreme and regressive strategy” with a goal of outlawing abortion not just in the state, but also across the country.
“If Roe falls, half the states in the country are poised to ban abortion entirely, Northup said in a statement. “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.”
Northup’s organization represents the Jackson, Miss., organization, the state’s only abortion clinic. Its brief is due at the Supreme Court in September.
The justices privately deliberated for months on whether to review the Mississippi law, which lower courts have not allowed to take effect. The Supreme Court announced in May it was accepting the case to decide “whether all pre-viability prohibitions on elective abortions are unconstitutional.”
That is the line that has been drawn in the court’s precedents, and cited across the country by judges who have struck down state prohibitions one after another that attempted to ban abortions earlier in pregnancy.
“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,” Judge Patrick E. Higginbotham wrote for the U.S. Court of Appeals for the 5th Circuit majority that refused to allow the Mississippi law.
The Supreme Court is likely to hear arguments in November or December. A decision next year would come amid midterm congressional elections.
In a news release Thursday, Fitch said that “it is time for the Court to set this right and return this political debate to the political branches of government.”
In her brief, she says Roe and Casey “shackle states to a view of the facts that is decades out of date.” And she adds: “Abortion jurisprudence has placed this Court at the center of a controversy that it can never resolve.”
The brief says 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 Justice Ruth Bader Ginsburg once called “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
Instead, Mississippi’s brief says, “Innumerable women and mothers have reached the highest echelons of economic and social life independent of the right endorsed in” Roe and Casey.
Mississippi passed the law in 2018. It would prohibit abortions after 15 weeks, with narrow exceptions for medical emergencies or severe fetal abnormality. (The state also has a court-blocked law restricting abortions after six weeks, and a so-called trigger provision that would prohibit abortion should Roe be overturned.)
The provisions are targeted to a court seemingly more skeptical of its abortion jurisprudence.
Last term, the court struck down a Louisiana law that targeted abortion clinics on a 5-to-4 vote, with Chief Justice John G. Roberts Jr. siding with the court’s liberals. It was the first time the chief justice had struck an abortion restriction, but Roberts said his vote was only to honor precedent — the court just several years earlier struck down a nearly identical Texas law.
Ginsburg, who was part of both majorities, died in September. She has been replaced by Justice Amy Coney Barrett, who has made her personal opposition to abortion clear and who as a law professor criticized Roe.
President Donald Trump predicted all three of his nominees to the court would oppose Roe. Justices Neil M. Gorsuch and Brett M. Kavanaugh voted to allow the Louisiana law to go into effect.
Still, overturning a precedent as deeply ingrained in the public as Roe is a major request.
As an alternative, Mississippi said the court could reduce the heightened scrutiny that abortion laws must meet and find that Mississippi’s law meets legitimate objectives such as protecting the unborn, women’s health or the medical profession.
It could find that not all pre-viability abortions are unconstitutional, the state said, or that the 15-week restriction does not place an undue burden on a substantial number of women.
Studies show that upward of 90 percent of abortions are performed in the first trimester. And the Jackson clinic does not perform abortions after 16 weeks, so the law “reduces by only one week the time in which abortions are available in Mississippi,” the brief said.