Supreme Court to review Mississippi abortion law that advocates see as a path to diminish Roe v. Wade

Washington Post

Supreme Court to review Mississippi abortion law that advocates see as a path to diminish Roe v. Wade

By Robert Barnes

May 17, 2021 at 9:47 a.m. EDT

The Supreme Court on Monday said it will review a restrictive Mississippi abortion law that opponents of the procedure say provides a clear path to diminish Roe v. Wade’s establishment of the right of women to choose an abortion.

 

Abortion opponents for months have urged the court’s conservatives to seize the chance to reexamine the 1973 precedent. Mississippi is one among many Republican-led states that have passed restrictions that conflict with the court’s precedents protecting a woman’s right to choose before fetal viability.

 

In accepting the case, the court said it would examine whether “all pre-viability prohibitions on abortion are unconstitutional.” That has been a key component of the court’s jurisprudence.

 

The Mississippi law would ban almost all abortions after 15 weeks of pregnancy. But both a district judge and a panel of the U.S. Court of Appeals for the 5th Circuit said that could not be squared with decades of Supreme Court precedents.

 

“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability,” Judge Patrick Higginbotham wrote for the appeals court. “States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right but they may not ban abortions.”

 

Mississippi already bans abortions after 20 weeks, and it has also passed legislation that would ban most abortions once a fetal heartbeat is detected, or near six weeks. Lower courts declined to let that law, or the 15-week ban passed in 2018, take effect.

 

U.S. District Judge Carlton Reeves wrote in a 2018 ruling that the Mississippi legislature’s “professed interest in ‘women’s health’ is pure gaslighting.”

 

“The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Reeves wrote.

 

The state argued that because the clinic challenging the law offered abortions only up to 16 weeks, the law was not affecting many women. The harm to the state, it said, was “requiring it to permit inhumane abortion procedures which cause a fetus to experience pain — a factor the Supreme Court has never explicitly addressed.”

 

But the Center for Reproductive Rights, representing the Jackson Women’s Health Organization, said the law was simply not allowed by Roe or the court’s 1992 decision affirming the abortion right, PlanneD Parenthood v. Casey.

“Before viability, it is for the pregnant person, and not the state, to make the ultimate decision whether to continue a pregnancy” the center said in its brief to the Supreme Court.

 

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

 

Antiabortion activists are hoping that a changed Supreme Court will alter that jurisprudence. President Donald Trump said overturning Roe was a priority when he chose three justices: Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. Kavanaugh and Barrett could be particularly important, because they replaced two justices who had protected abortion rights, Justice Anthony M. Kennedy and Ruth Bader Ginsburg, respectively.

 

Until the Supreme Court acts, it is likely that lower courts will continue to strike down the restrictive laws, even if reluctantly.

 

That was evident in the 5th Circuit’s decision. Even though the panel was unanimous in striking the Mississippi law, Circuit Judge James Ho wrote separately to criticize Reeves’s opinion.

 

The decision, Ho wrote, “displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life.”

 

The case is Dobbs v. Jackson Women’s Health Organization.

 

AP

 

Supreme Court to weigh rollback of abortion rights

By MARK SHERMAN The Associated Press,Updated May 17, 2021, 5 minutes ago

WASHINGTON (AP) — The Supreme Court agreed Monday to consider a major rollback of abortion rights, saying it will take up Mississippi’s bid to enforce a 15-week ban on abortion.

 

The court’s order sets up a showdown over abortion, probably in the fall, with a more conservative court seemingly ready to dramatically alter nearly 50 years of rulings on abortion rights.

 

The court first announced a woman’s constitutional right to an abortion in the 1973 Roe v. Wade decision and reaffirmed it 19 years later.

 

The state’s ban had been blocked by lower courts as inconsistent with Supreme Court precedent that protects a woman’s right to obtain an abortion before the fetus can survive outside her womb.

 

NYT

 

The Supreme Court will hear a major abortion case.

By Adam Liptak

May 17, 2021, 9:52 a.m. ET

The Supreme Court on Monday said it would hear a case from Mississippi challenging Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The case will give the court’s new 6-to-3 conservative majority its first opportunity to weigh in on state laws restricting abortion.

 

The case, Dobbs v. Jackson Women’s Health Organization, No. 19- 1392, concerns a law enacted by the Republican-dominated Mississippi legislature that 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 said the law was plainly unconstitutional under Roe, which forbids states from banning abortions before fetal viability — the point at which fetuses can sustain life outside the womb, or around 23 or 24 weeks.

 

Mississippi’s sole abortion clinic sued, saying the law ran afoul of Roe and Planned Parenthood v. Casey, the 1992 decision that affirmed Roe’s core holding.

 

Judge Carlton W. Reeves of Federal District Court in Jackson, Miss., blocked the law in 2018, saying the legal issue was straightforward and questioning the state lawmakers’ motives.

 

“The state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Judge Reeves wrote. “This court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.”

 

“With the recent changes in the membership of the Supreme Court, it may be that the state believes divine providence covered the Capitol when it passed this legislation,” wrote Judge Reeves. “Time will tell. If overturning Roe is the state’s desired result, the state will have to seek that relief from a higher court. For now, the United States Supreme Court has spoken.”

 

A three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, affirmed Judge Reeves’s ruling. “In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and reaffirmed) a woman’s right to choose an abortion before viability,” Judge Patrick E. Higginbotham wrote for majority.

 

Judge James C. Ho, issued a reluctant concurring opinion expressing misgivings about the Supreme Court’s abortion jurisprudence.

 

“Nothing in the text or original understanding of the Constitution establishes a right to an abortion,” he wrote. “Rather, what distinguishes abortion from other matters of health care policy in America — and uniquely removes abortion policy from the democratic process established by our Founders — is Supreme Court precedent.”

 

Lynn Fitch, Mississippi’s attorney general, urged the justices to hear the state’s appeal in order to reconsider their abortion jurisprudence. “‘Viability’ is not an appropriate standard for assessing the constitutionality of a law regulating abortion,” she wrote.”

 

Lawyers for the clinic said the case was straightforward. The law, they wrote, “imposes, by definition, an undue burden.”

 

“It places a complete and insurmountable obstacle in the path of every person seeking a pre-viability abortion after 15 weeks who does not fall within its limited exceptions,” they wrote. “It is unconstitutional by any measure.”