Abortion Rights Rollback Faces Supreme Court Say

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — The Supreme Court took up a case Monday that will determine the constitutionality of Mississippi’s extreme ban on abortions after 15 weeks of pregnancy when fetus viability outside the womb is medically impossible.

Likely to go up for arguments in the fall, the case could allow the staunchly conservative court now to dramatically alter nearly 50 years of abortion rights jurisprudence.

The court first announced a woman’s constitutional right to an abortion with the case Roe v. Wade in 1973, but it implemented what’s known as a “viability analysis” in the 1992 case Casey v. Planned Parenthood, giving states the power to regulate abortions of a fetus that could survive outside of the womb.

In Roe, the court ruled that a woman had the sole input as to whether she was ending her pregnancy up to 12 weeks. It said the state could “regulate” abortion procedures after the first trimester, and that it could “regulate” but not outlaw abortions in the interests of the mother’s health in the second trimester.

When it overturned Roe’s trimester framework with Casey 19 years later, the court held that the state cannot pose an “undue burden” on a woman’s right to abortion before the fetus is viable.

The current scientific consensus is that fetuses are viable 22 weeks, and every court to consider Mississippi’s 2018 attempt to ban abortions past 15 weeks has ruled against it. 

The state has only one abortion clinic, the Jackson Women’s Health Organization, where pregnancies can be terminated up to 16 weeks. With evidence from the clinic that a fetus cannot survive outside the womb at 15 weeks, the Fifth Circuit called the central argument of the case irrefutable. It said the state “conceded that it had identified no medical evidence that a fetus would be viable at 15 weeks.”

In its June 2020 petition to the Supreme Court, Mississippi argued that it was not asking the court to overturn Roe or Casey but to consider whether all abortion bans at points before a fetus could survive outside the uterus are constitutional. The case asks whether its law could be validated if the justices find it does not impose an undue burden” on the woman seeking an abortion under Casey.

“The act appropriately regulates inhumane procedures,” the Mississippi Attorney General’s Office wrote, representing the state health officer Thomas Dobbs.

Mississippi calls it “undisputed in the medical literature that a human fetus develops neural circuitry capable of detecting pain by 10-12 weeks,” and says that tying states’ ability to regulate abortions to “viability” limits them by “developments in obstetrics.” It notes as an example that the state could not have prohibited a ban on a 24-week-old fetus in the 1970s, as it would not have been considered viable by scientists at that time.

What’s more, the 58-page petition argues, any surgical abortions after 15 weeks carry inherent medical threats for the women involved. “The risk of a mother’s death from abortion at 16 to 20 weeks is 35 times more likely than at 8 weeks, and the relative risk of mortality increases 38% for each additional week at higher gestations,” the petition says.

For perspective, a report published the National Center for Biotechnology Information: “During the period from 1998–2010, of approximately 16.1 million abortion procedures, 108 women died, for a mortality rate of 0.7 deaths per 100,000 procedures overall.” 

The report noted that the mortality rate increased with gestational age, “from 0.3 to 6.7 deaths for procedures performed at 8 weeks or less and at 18 weeks or greater, respectively.” Most abortion-related deaths at 13 weeks of gestation or less were associated with anesthesia complications and infection, it said, and abortion-related deaths at more than 13 weeks were associated with infection and hemorrhage.

Mississippi would allow exceptions to the 15-week ban in cases of medical emergency or severe fetal abnormality. Doctors found in violation of the ban meanwhile would face mandatory suspension or revocation of their medical license. Separately, Mississippi is also one of several states that has attempted to ban most abortions as early as six weeks — when a fetal heartbeat may be detected.

Hillary Schneller, representing the Jackson Women’s Health Organization, wrote in a response brief last year that the state’s argument is insufficient to warrant court intervention.

“In an unbroken line of decisions over the last fifty years, this court has held that the Constitution guarantees each person the right to decide whether to continue a pre-viability pregnancy,” wrote Schneller, an attorney with the Center for Reproductive Rights. “Yet Mississippi passed a law banning abortion after 15 weeks of pregnancy — months prior to viability. Both the United States Court of Appeals for the Fifth Circuit and the district court correctly held that this unconstitutional law cannot stand. The decision below properly applies this Court’s precedent and does not conflict with the decision of any other court.”

Schneller also argued that the high court’s precedent is clear that, “before viability, it is for the pregnant person, and not the state, to make the ultimate decision whether to continue a pregnancy.”

“A pre-viability abortion ban unquestionably contravenes this fundamental tenet of the Court’s abortion jurisprudence,” the brief continues.

Next month marks a year since Mississippi asked the Supreme Court to weigh in on the 15-week ban. Justice Ruth Bader Ginsburg, who supported abortion rights, died just before the court’s new term began in October. Her Trump-appointed successor, Justice Amy Coney Barrett, is the most open opponent of abortion rights to join the court in decades.

Former President Donald Trump’s other two Supreme Court appointees, Justices Neil Gorsuch and Brett Kavanaugh, dissented last year when the court blocked Louisiana restrictions that could have closed two of the state’s three abortion clinics.

Ginsburg and the other three liberal justices had joined Chief Justice John Roberts in saying the restrictions were virtually identical to a Texas law the court struck down in 2016.

The Texas Attorney General’s Office filed an amicus brief supporting Mississippi, representing the Lone Star State as well as Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee and West Virginia.

Stone also did not immediately return a request for comment Monday, nor did attorney Schneller.

Mississippi Attorney General Lynn Fitch championed the state’s position in a statement Monday.

“The Mississippi Legislature enacted this law consistent with the will of its constituents to promote women’s health and preserve the dignity and sanctity of life,” Fitch said. “I remain committed to advocating for women and defending Mississippi’s legal right to protect the unborn.”

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