Mississippi pushes Supreme Court to overturn Roe v. Wade

WASHINGTON (CN) — Ahead of arguments this fall on the state's ban on abortions after 15 weeks of pregnancy, Mississippi submitted a brief to the Supreme Court late Thursday that says even if a fetus is not viable, meaning it is not developed enough to survive outside the womb, lawmakers have the power to ban its abortion.

“Nothing in constitutional text, structure, history, or tradition supports a right to abortion,” Mississippi Attorney General Lynn Finch wrote in the 60-page brief Thursday, representing the state health officer Thomas Dobbs. “A prohibition on elective abortions is therefore constitutional if it satisfies the rational basis review that applies to all laws.”

The Supreme Court took up the case in May, agreeing to decide whether all pre-viability bans on elective abortions are unconstitutional. Notably, the state has only one abortion clinic, the challenger in the case: Jackson Women's Health Organization, where pregnancies up to 16 weeks can be terminated.

At the time Mississippi asked the Supreme Court to consider the 15-week ban, the court only had a razor-thin, 5-4 conservative margin. The court is now tilted 6-3, however, with Justice Amy Coney Barrett, the most open opponent of abortion rights to join the court in decades, having taken the seat of Justice Ruth Bader Ginsburg, who supported abortion rights. When the suit goes up for oral arguments in the fall, nearly 50 years of abortion rights jurisprudence hang in the balance.

The high 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.

Mississippi pushed the court Thursday to overrule both prior rulings.

“Roe and Casey are egregiously wrong,” the brief states.

It continues, stating that Roe and Casey “shackle states to a view of the facts that is decades out of date,” arguing that women have better access to adoption services and contraception as well as “professional success” than they did when the abortion precedent was set.

“Those cases maintained that an unwanted pregnancy could doom women to ‘a distressful life and future,’ that abortion is a needed complement to contraception, and that viability marked a sensible point for when state interests in unborn life become compelling,” the brief says. “Factual developments undercut those assessments.”

Previously, banking on 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.”

Mississippi urged the high court to reverse the Fifth Circuit’s finding and find that keeping Roe and Casey in place “harms the Constitution, the country, and this court.” 

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.

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 to Mississippi’s petition last year that the state's argument was insufficient to warrant court intervention. Schneller is expected to soon file a response to the state’s brief on behalf of the clinic.

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