'Decisive moment': Abortion rights groups appeal to Supreme Court to uphold Roe amid Texas ban fallout
- The Supreme Court agreed to hear a challenge to Mississippi's ban on most abortions after 15 weeks.
- The clinic fighting the ban urged the justices Monday to honor their past precedents on abortion.
- The justices are expected to hand down a ruling in the high profile case early next summer.
WASHINGTON – An abortion provider in Mississippi is urging the Supreme Court to remain faithful to its precedents in the most closely watched case in years that directly challenges the high court’s landmark Roe v. Wade decision.
Mississippi's sole remaining abortion clinic, Jackson Women's Health Organization, told the court in a key brief Monday that its reputation as the nation’s least political branch of government is at stake – an argument clearly designed to appeal to Chief Justice John Roberts’ efforts to shield the court from charges of rank partisanship.
"Unless the court is to be perceived as representing nothing more than the preferences of its current membership, it is critical that judicial protection hold firm absent the most dramatic and unexpected changes in law or fact," the clinic's attorneys told the justices. "If the court considers the state's new arguments, it should reject the invitation to jettison a half-century of settled precedent."
The Supreme Court agreed in May to hear the challenge to Mississippi's ban on most abortions after 15 weeks of pregnancy, giving its six-member conservative majority a chance to undermine – if not overrule – the 1973 ruling in Roe that women have a constitutional right to abortion and a 1992 decision that permitted that right up until the point when a fetus can survive outside the womb, roughly 24 weeks.
Mississippi Attorney General Lynn Fitch said that the brief offered "no solid arguments in defense of Roe" and renewed calls to overturn the watershed ruling.
"For fifty years, abortion policy has been plagued by flawed legal rules that even some of the most ardent abortion supporters have refused to defend," Fitch said.
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The Mississippi dispute is separate from the Texas emergency appeal that went up to the Supreme Court last week, resulting in an order that allowed the Lone Star State’s ban on most abortions after six weeks to remain in effect while lower courts consider underlying legal questions about that state law. The Texas decision dealt with a procedural question about enforcement while the Mississippi case involves fundamental questions about the constitutionality of abortion.
Mississippi approved its prohibition in 2018, making it one of 16 states with pre-viability bans blocked by federal courts, according to the Guttmacher Institute, a research group that supports abortion rights. The law has no exception for rape or incest but allows abortions for medical emergencies and "severe fetal abnormality."
The high court is expected to hand down a ruling in the Mississippi case early next summer.
A 7-2 majority of the Supreme Court concluded in Roe that women have the right to an abortion during the first and second trimesters but that states could impose restrictions in the second trimester. Nearly two decades later, in Planned Parenthood v. Casey, the court reconsidered Roe, upheld the right to an abortion but tossed out the trimester framework. Instead, the court said women could have an abortion until viability.
In the decades since then, many conservatives have been working to undermine those decisions through state laws and judicial appointments. President Donald Trump, who was able to confirm three justices to the high court during his four years in office, was able to woo many conservative voters in 2016 by promising to nominate jurists who would overturn Roe v. Wade.
Mississippi attorneys laid out their case in a brief over the summer, explicitly asking the court to overturn its precedents.
"Roe and Casey are egregiously wrong," lawyers for Mississippi told the court in July. "The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition."
Courts – and especially the Supreme Court – are hesitant to overturn past decisions because the principle of stare decisis, adherence to earlier decisions, gives stability and certainty to the law. It also gives the court the appearance of immunity from politics, or that it is responding to public pressure rather than a nonpartisan view of the law.
Roberts, in particular, has appeared sensitive to maintaining the court’s reputation as a nonpartisan institution.
But Roberts, who joined the court in 2005, is no longer the swing justice – a point underscored last week in the Texas abortion case. In that ruling, Roberts joined with the three liberal justices in asserting that the Texas six-week ban should have been halted temporarily while the complicated legal questions in the case were resolved by lower courts. The court’s other five conservatives allowed the law to remain in effect.
That ruling led to an outcry on the left, with President Joe Biden offering criticism not only of the Texas law but also of the court itself. Because the justices handled the matter on the so-called shadow docket, without oral argument or a lengthy opinion, it has renewed calls for increased transparency at the Supreme Court.
Speaking over the weekend, Associate Justice Amy Coney Barrett, appeared to push back on that criticism, telling a group in Louisville that "my goal today is to convince you that this court is not comprised of a bunch of partisan hacks." Progressives countered that Barrett's point was undermined by the fact that she was introduced by Senate Republican Leader Mitch McConnell, who helped secure her confirmation.
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Barrett was speaking at an anniversary celebration of the opening of the McConnell Center at the University of Louisville. The center is nonpartisan.
The Justice Department is suing Texas to block the enforcement of the Texas law.
Rather than overturning Roe directly, the justices could take a more narrow approach in the Mississippi case and drop the viability threshold. But that would raise the same question that has vexed the justices for decades: Where to draw the line between a state's interest in protecting a fetus and a woman's right to reproductive autonomy.
More than 92% of abortions in the U.S. in 2018 occurred in the first 13 weeks of pregnancy, according to the Centers for Disease Control and Prevention.
A federal district court in Mississippi struck down the state ban in 2018 and the New Orleans-based U.S. Court of Appeals for the 5th Circuit upheld that decision in 2019, finding that the law was "facially unconstitutional because it directly conflicts with" prior Supreme Court precedent.
“This is a decisive moment for the court and this country,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which is representing the Mississippi clinic. “If the court grants Mississippi’s request to overturn Roe, large swaths of the South and Midwest – where abortion is already hard to access – will eliminate abortion completely.”