Mississippi Gives SCOTUS First Shot At Taking Our Reproductive Rights Away
The shoe we've been staring up at for nearly five years is about to drop.
Today, the Supreme Court announced it will be take up a case disputing the constitutionality of Mississippi's 15-week abortion ban. The 6-3 conservative majority court will be hearing the case this fall and, most likely, deciding on it in the summer of 2022. We'll just go ahead and start calling it "Forcibly Pregnant Girl Summer," because this is their chance to at least start to overturn Roe v. Wade, and we all are pretty sure they're going to take it.
Here's the deal. In 2018, Mississippi passed the Gestational Age Act, which would prohibit abortions after 15 weeks. The Jackson Women's Health Organization, the last remaining abortion clinic in the state, challenged the ban in a federal court and won, because the law violated the viability standard determined in Roe, later clarified in Planned Parenthood v. Casey. The state then took the case to the US Court of Appeals for the 5th Circuit, which upheld the lower court's ruling.
The state lost because Roe v. Wade found that, up until viability — meaning the ability of the fetus to live outside the womb, which normally occurs at about 24 weeks — the decision on whether or not to have an abortion is a private one that should be left between the patient and their doctor. Therefore, states are not allowed to ban anyone from having an abortion prior to that.
Following these losses, the state's attorney general's office then petitioned the Supreme Court for a writ of certiorari on three questions related to the case. SCOTUS has decided to only address their first question, which is "[w]hether all pre-viability prohibitions on elective abortions are unconstitutional." In other words, the one of the central questions asked and answered by Roe and Casey. The petition argues that the state's case allows for the court to resolve its supposedly "conflicting statements" regarding the viability standard versus the state's interests.
Part of the state's argument was that the district court was mean to them when it said their supposed interest in "women's health" was disingenuous due to their refusal to expand Medicaid.
The district court held that under controlling precedent, the 15-week law is unconstitutional because it would "ban" pre-viability abortions. The district court did not apply the undue burden test, and it refused to consider any of the legitimate government interests furthered by the 15-week law. Instead, the district court disparaged Mississippi's acknowledged interest in women's health as "pure gaslighting" and criticized Mississippi for following the lead of many states who declined to expand Medicaid following enactment of the federal Affordable Care Act.
That court was extremely correct. Hell, if I were on that court, I would have also casually mentioned the state's incredibly high infant and maternal mortality rates, which they don't really seem to be nearly as concerned with.
The state of Mississippi argued in the petition that the viability standard isn't specific enough and also that it is an unfair test to apply to their wonderful law, which they claim "protects women's health, the dignity of unborn children, and the integrity of the medical profession and society."
No, really. It actually says that. They have the actual gall to talk about women's health here. Not to mention the "integrity of the medical profession," which they apparently mean to improve by injecting themselves into the doctor-patient relationship.
"[T]he viability rule was created outside the ordinary crucible of litigation, failed to take account of the state's accepted interest in maternal health and fetal pain, is increasingly out of step with other areas of the law, rejects science and common sense, and is shaky precedent at best. The court should revisit it."
The state argues that their law does not present an "undue burden" or "substantial obstacle" to obtaining an abortion because those who want one can just get one before their 15 weeks is up. Of course, given that there is just one abortion clinic left in the state — Jackson Women's Health — it may not actually be as easy as all that.
That little fact also factors into the state's explanation of how their terrible law "protects women's health."
Any surgical abortion taking place after 15 weeks' gestation carries inherent medical threats to the mother. The risk of a mother's death from abortion at 16 to 20 weeks' gestation is 35 times more likely than at eight weeks, and the relative risk of mortality increases by 38% for each additional week at higher gestations.
Let's be clear about what's really going on. The state of Mississippi enacted a bunch of TRAP (Targeted Regulation of Abortion Provider) laws over the years that resulted in the closure of all but one of the abortion clinics in the state, making it extremely difficult for anyone to obtain an abortion in-state. They enacted various other regulations making it difficult to obtain an abortion early in pregnancy, such as requiring waiting periods and mandatory "counseling." They outlawed the dilation and extraction method, which is the safest method for second trimester abortions.
They made it difficult as hell to actually get an abortion early on in a pregnancy, and would now like to be able to limit the time in which people can obtain abortions ... based on the fact that it is safer to get an abortion early on in a pregnancy. That's some kind of racket. That's like opening up a "Parachutes And Caskets R Us" store and then acting shocked when people want to purchase their skydiving gear elsewhere.
The Center for Reproductive Rights, which is representing Jackson Women's Health in this case, explained in its own petition that the Supreme Court has not actually been all that conflicted — because the standard has always been that it is in the best interest of the pregnant person's health for this to be a decision between them and their doctors.
Mississippi urges this Court to take this case because of a non-existent conflict in this Court's own abortion precedent. The State's argument should be rejected, and the petition denied, because it is based on a misunderstanding of the core principle of those decisions: that, while the State has interests throughout pregnancy, "[b]efore viability, the State's interests are not strong enough to support a prohibition of abortion." [...]
Roe and Casey, and the Court's subsequent cases, are 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.
It's not actually that hard! In every other instance on earth (excluding assisted suicide in most states, which should also be allowed), medical decisions are left to the doctor and patient. You don't see any states out there arguing that they know how to treat cancer better than an oncologist and should therefore have a say in chemotherapy decisions. This is apparently the only situation in which the state feels that doctors simply cannot be trusted to help their patients make the decision that is best for them.
Of course, regardless of how right the Center for Reproductive Rights is, regardless of how very full of shit the state of Mississippi is on this one, we've got a 6-3 conservative court that is itching to take Roe down. And even if this particular case doesn't lead to it being overturned completely, there are loads of others waiting in the wings that might — and when that happens, multiple states have trigger laws that will go into effect and make abortion immediately illegal.
So if you haven't already been thinking about contingency plans and how you can help those in states that will prohibit abortion — now's a good time to start.
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse