The Supreme Court And Abortion: As Texas Goes, Will Mississippi Follow?
The U.S. Supreme Court has allowed Texas to effectively deputize its residents to block abortions after six weeks of pregnancy. At least eight other states, including Mississippi, are considering copy-cat laws.
With the court set to take up Mississippi's 15-week abortion law, many pro-choice advocates now fear the conservative majority will deliver the final blow to Roe v. Wade.
Texas’ law went into effect as the most restrictive in the U.S. Women in Texas can obtain abortions only before six weeks of pregnancy, when a fetal heartbeat supposedly can be detected; there are no exceptions in cases of rape or incest.
Under the Texas law, anyone found to be helping a woman obtain an abortion after six weeks can be sued and fined $10,000. A federal judge granted Planned Parenthood a temporary restraining order, but only until Sept. 17. Attorney General Merrick Garland said the U.S. Department of Justice will enforce clinic access laws for women in Texas. The department, Garland added, is exploring “all options” to challenge Texas’ new law.
Mississippi, North Dakota, South Dakota, Iowa, South Carolina, Indiana, Arkansas and Florida are contemplating copy-cat laws. Eight states besides Texas already ban abortion after six weeks.
Black tarp at Jackson Women's Health Organization, the state'e lone abortion provider, protects the privacy of the clinic's patients. Ann Marie Cunningham/MCIR
Federal data from 2018, the most recent available, report that two-thirds of abortions nationwide take place after six weeks. At six weeks, many women don’t even realize they’re pregnant. “Unless a woman is actively trying to get pregnant, she is unlikely to know that she is pregnant at six weeks,” according to Dr. Sarah Horvath, a family planning fellow at the American College of Obstetricians and Gynecologists in The New York Times.
The Supreme Court’s inaction on a 5-4 decision means that Roe v. Wade, the law of the land since 1973, effectively has been overturned in Texas.
All three liberal justices dissented, along with Chief Justice John Roberts. Justice Sonia Sotomayor objected forcefully: “The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents.”
Besides the Texas’ law’s constitutionality, there are questions about its scientific validity. What can be detected at six weeks does not come from an actual beating heart, according to Dr. Saima Aftab, medical director of the Fetal Care Center at Nicklaus Children's Hospital in Miami. She said that at six weeks an ultrasound can detect "a little flutter in the area that will become the future heart of the baby.”
This flutter happens, Aftab explained to Live Science, because the group of cells that will become the future “pacemaker” of the heart gains the capacity to fire electrical signals. As an organ, the heart has not developed completely, and even with a stethoscope, no actual heartbeat is audible. At six weeks, a pregnant woman is carrying an embryo that could not survive outside the womb.
By not considering the Texas state law’s constitutionality, is the Supreme Court telegraphing its future intentions regarding abortion? Does its conservative majority have any interest in upholding precedent -- and not just in Roe v. Wade?
In April, the 6-3 conservative majority reversed a nearly two-decade long trend of chipping away at harsh punishment for juveniles convicted in homicides. In a Mississippi case involving a 15-year-old sentenced to life for killing his grandfather, it concluded that courts could sentence juveniles to life without hope of parole, even without a finding — as the court required in its 2012 Miller and 2016 Montgomery decisions — that a juvenile was permanently incorrigible.
Justice Brett Kavanaugh wrote that this decision didn’t overturn these precedents. But Sotomayor disagreed, saying the 2021 decision “rewrites Miller and Montgomery to say what the Court now wishes they had said, and then denies that it has done any such thing.”
About a year from now, the Supreme Court will hear another Mississippi case, a direct challenge to the precedent-setting Roe v. Wade. Dobbs v. Jackson Women’s Health Organization concerns Mississippi’s ban on most abortions after 15 weeks of pregnancy.
At present, Mississippi’s only abortion clinic, the Jackson Women’s Health Organization, performs abortions up to 15 weeks. Since the Supreme Court announced on May 17 that it would hear this case, Mississippi has asked the court to overturn Roe v. Wade. Texas and several other states signed an amicus curiae brief that did not argue for Roe’s being struck down.
If the high court upholds Mississippi’s 15-week ban, what will happen to women here who need abortions? Clinics in Colorado, Oklahoma, Kansas and New Mexico are hearing from Texas-based patients who are facing hundreds of miles of travel and extra costs to end their pregnancies. If a patient doesn’t have to endure harassment or acute stress, the medical procedure should not be physically traumatic. Women of means who can travel will be able to secure abortions in other states.
But more than two-thirds of Texans seeking abortion care are poor, and most are women of color. The same is true in Mississippi. To obtain abortions, these women will face extra financial and logistical hurdles, including the cost of traveling out of state, being obliged to take time off work to do so, finding child care and transportation. Feminists of color have called situations like this reproductive injustice.
Recently, a young Oxford resident faced innumerable difficulties when she had to seek an abortion outside Mississippi because she was more than 15 weeks pregnant. She got help with travel to Arkansas from the Mississippi Reproductive Freedom Fund. But the grassroots fund probably cannot help all Mississippi women seeking abortions out of state if the Supreme Court doesn’t overturn Mississippi’s law.
Many women seeking abortions are victims of a form of domestic or dating violence known as reproductive coercion. This form of abuse means that a partner uses verbal threats or physical force to try to control a woman’s reproductive choices. An abusive partner might try to impregnate a partner against her will, force her to have unprotected sex, or interfere with contraception, like using a pin to puncture a condom. If his partner is pregnant, he might try to prevent her from seeking an abortion.
According to a guide recently released by Futures Without Violence, 53% of women who go to family planning clinics experience partner violence. Fifteen percent of women with a history of partner violence report that their partners have sabotaged their birth control. Texas’ law will help such abusers control their partners.
Since the Supreme Court let Texas’ law stand, there have been calls in Congress to pass the Women’s Health Protection Act, introduced last June by Rep. Judy Chu, D-Calif., and Sen. Richard Blumenthal, D-Conn. If passed, the bill would protect access to abortion despite state laws like the one in Texas. House Speaker Nancy Pelosi, D-Calif., has said that Congress will consider the bill in September.
Republicans in Congress are expected to fight back, even via a filibuster. One pro-choice activist retorted, “That’s a fine reason to get rid of the filibuster.”
Other activists are mourning the late Justice Ruth Bader Ginsburg all over again. Ginsburg said, “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself.”
Ann Marie Cunningham is MCIR’s Reporter in Residence. She holds a 2021 grant from the Domestic Violence Impact Reporting Fund at the Center for Health Journalism at the Annenberg School of Journalism at the University of Southern California. Contact her at amc@mississippicir.org.