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Supreme Court urged to reject Mississippi’s attack on Roe v. Wade

WASHINGTON >> Abortion providers in Mississippi urged the Supreme Court today to reaffirm Roe v. Wade, the 1973 decision that established a constitutional right to abortion.

The filing came in the most important abortion case in decades, in which officials in Mississippi have asked the court’s newly expanded conservative majority to overrule Roe and to sustain a state law that largely bans abortions after 15 weeks of pregnancy.

Mississippi’s arguments, the brief said, amounted to “a request that the court scuttle a half-century of precedent and invite states to ban abortion entirely.”

The providers’ brief came less than two weeks after a closely divided Supreme Court refused to block a Texas law that banned most abortions after six weeks, one that had been drafted to evade challenges to it in federal court. But the ruling in the Texas case was procedural and provisional, while the Mississippi filing came in a case presenting a frontal challenge to Roe and the decisions that followed it.

Nancy Northup, the president of the Center for Reproductive Rights, which represents the providers, said the Mississippi case had the potential to do away with the right to abortion in much of the nation.

“Right now,” she said, “Texas has managed to ban abortion even as Roe stands, and other states have said they will follow in its footsteps. While Texas is circumventing Roe and the Constitution, Mississippi is openly asking the court to overturn Roe. 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.”

Attorney General Lynn Fitch of Mississippi, a Republican, said that the brief offered “no solid arguments in defense of Roe, and the court should overturn this flawed and hopelessly unworkable precedent.”

The court has not yet scheduled the argument in the case, Dobbs v. Jackson Women’s Health Organization, though sometime in December would seem to be a good bet.

The new brief, filed on behalf of the state’s only abortion clinic and its medical director, said the Supreme Court had already considered and rejected Mississippi’s arguments against Roe in other cases. The most notable is Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe’s core holding and said states may not impose an “undue burden” on the right to abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 23 or 24 weeks.

The law at issue in the new case was enacted in 2018 by the Republican-dominated Mississippi Legislature. It banned abortions if “the probable gestational age of the unborn human” was determined to be more than 15 weeks. The statute included narrow exceptions for medical emergencies or “a severe fetal abnormality.”

Lower courts blocked the Mississippi statute, calling it a cynical and calculated assault on abortion rights directly at odds with Supreme Court precedents.

The justices agreed to hear the case in May, just months after Justice Amy Coney Barrett, who has said she personally opposes abortion, joined the court. She replaced Justice Ruth Bader Ginsburg, a proponent of abortion rights, who died last year.

In their petition seeking Supreme Court review, state officials told the justices that “the questions presented in this petition do not require the court to overturn Roe or Casey,” though they did raise the possibility in a footnote. Once the court agreed to hear the case, the officials shifted their emphasis and began a sustained assault on those precedents.

In a brief filed in July, Fitch wrote that Roe was “egregiously wrong.”

“The Constitution does not protect a right to abortion,” she wrote. “The Constitution’s text says nothing about abortion. Nothing in the Constitution’s structure implies a right to abortion or prohibits states from restricting it.”

Fitch told the justices that the scope of abortion rights should be determined through the political process. “The national fever on abortion can break,” she wrote, “only when this court returns abortion policy to the states — where agreement is more common, compromise is often possible, and disagreement can be resolved at the ballot box.”

In the brief filed today, the Mississippi abortion providers suggested that the change in the state’s approach represented a bait-and-switch tactic that could warrant dismissal of the case.

The precise question the justices agreed to decide was “whether all previability prohibitions on elective abortions are unconstitutional.” Depending on how the court answers that question, it could reaffirm, revise or do away with the long-standing constitutional framework for abortion rights.

The providers devoted much of their brief to a defense of viability as a principled and workable dividing line between when states can ban abortions and when they cannot.

The line has worked in practice, the brief said.

“Federal courts have applied the viability rule with remarkable uniformity and predictability for five decades,” it said, “finding previability bans on abortion invalid regardless of whether those bans operated at six, 12 or 20 weeks and regardless of the reasons states alleged to justify them.”

Mississippi has not come forward with a good alternative to viability, the providers wrote. “A party asking this court to take the grave step of overruling a rule of law — one that has been repeatedly reaffirmed — should at least propose and seriously develop an alternative legal framework,” the brief said.

The text mentioned the Texas law only in passing, as a foreshadowing of the chaos and upheaval that it said would follow a decision overruling Roe.


This article originally appeared in The New York Times.

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