Written by: McKenna Stone Cloud
Mississippi is urging the United States Supreme Court to overturn nearly half a century of precedent establishing women’s constitutional right to seek an abortion. On December 1, 2021, the Court will hear arguments for Dobbs v. Jackson Women’s Health Organization, a case involving Mississippi’s law that bans abortions after 15 weeks of pregnancy. Other states have followed suit and passed similarly restrictive abortion laws. For instance, in September of 2021, the Supreme Court declined to suspend a Texas law that bans abortions after six weeks of pregnancy on procedural grounds. The Texas law is currently being contested on constitutional grounds in lower federal courts. With these recent challenges to abortion rights on the national stage, the Court faces a monumental question: Will it overturn Roe v. Wade, thereby stripping women’s constitutional right to abortion before viability?
The Conception of Abortion Jurisprudence
The constitutional right to an abortion derived from a line of Supreme Court cases that gradually developed a constitutional right to privacy. While the right to privacy is not expressly stated in the Constitution, the Court has held that such a right can be inferred from several Constitutional Amendments, including the Fourteenth Amendment’s Due Process Clause. See, e.g., Griswold v. Connecticut. Eventually, this implied right to privacy expanded to encompass a woman’s decision to terminate her pregnancy.
In the landmark case Roe v. Wade, the Supreme Court established women’s constitutional right to seek an abortion. However, the Court held that this right is not absolute; states may enact legislation that regulates abortion in narrow circumstances. Nearly two decades later, in Planned Parenthood v. Casey, the Court reaffirmed Roe’s central holding and clarified how states may regulate abortion.
Casey developed the “undue burden test,” which strikes down an abortion statute as unconstitutional if its purpose or effect is to place a substantial obstacle (“undue burden”) in the path of a woman seeking an abortion before the fetus attains viability – the point at which a fetus can survive outside the uterus. After viability, which typically occurs around 24 weeks of pregnancy, a state may regulate or even ban abortion, except where it is necessary to preserve the mother’s health or life.
Now, this nearly 50-year-old precedent is in jeopardy, as Mississippi and other states call upon the majority Court to overturn Roe and Casey.
Mississippi’s Challenge to Half a Century of Precedent
In 2018, the Mississippi Legislature passed the “Gestational Age Act,” which proscribes abortions after 15 weeks of pregnancy, except in cases of medical emergencies or severe fetal abnormality. The act does not provide exceptions for rape or incest. On the day the act was signed into law, the State’s only licensed abortion facility, Jackson Women’s Health Organization, challenged the law in court. Federal District Judge Carlton Reeves for the Southern District of Mississippi declared the act unconstitutional, as it placed an undue burden on women’s right to seek abortions pre-viability. Judge Reeves revealed Mississippi’s reason for passing a knowingly unconstitutional law: “to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.”
In 2019, the U.S. Court of Appeals for the Fifth Circuit affirmed Judge Reeves’s invalidation of the act. The Supreme Court granted certiorari in May of 2021, and the Court will hear oral arguments at the end of the year.
To Overturn, or Not to Overturn? That is the Question.
Will Roe and Casey continue to govern, or will the Supreme Court decide to start fresh with a new era of abortion jurisprudence? If the Court overturns Roe, women will no longer have a constitutional right to access abortion before viability, and states will have greater autonomy to regulate and ban abortions likely at any stage of pregnancy. This outcome is certainly a possibility, as the Court’s current makeup reflects a decisive 6-3 conservative majority after former President Trump appointed three conservative Supreme Court Justices during his term. Thus, the landmark decision remains up in the air, with activists on both sides presenting arguments on the national stage.
Mississippi Attorney General Lynn Fitch filed a brief on July 22, 2021, in which she urged the Court to overturn Roe and Casey, contending they recognize a right that has no constitutional basis. Attorney General Fitch argued abortion regulations should be left to the discretion of states.
Conversely, in a friend-of-the-court brief, Acting Solicitor General Brian H. Fletcher claimed overruling Roe “would harm women (and their partners) who have ‘organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.’” Furthermore, he argued overturning Roe would “seriously undermine women’s ‘autonomy’” and the impacts would likely “be felt most acutely by young women, women of color, and those of lesser means.” (quoting Gonzales v. Carhart, (Ginsburg, J., dissenting)).
Grab your oar and life vest because we will all be row, row, rowing up to D.C. this December to witness the Court’s decision whether to preserve precedent or redefine abortion jurisprudence.