U.S. Supreme Court takes aim at Roe V. Wade by deciding to hear Mississippi Case

By considering Mississippi’s 2018 law banning abortions after 15 weeks of pregnancy, the U.S. Supreme Court is tipping off its plans to chip away at the right to abortion, experts says.

With its decision to hear Dobbs v. Jackson Women’s Health Organization, the court is taking on multiple state laws that outlaw abortion at early stages of pregnancy — and ultimately Roe v. Wade, its 1973 landmark decision.

“For almost half-a-century now, the Supreme Court has made clear that the state must respect a woman’s right to decide for herself whether to carry a fetus to term. The state cannot prohibit abortion outright until viability – that is, when the fetus can live outside of the woman, or at around 24 weeks,” Geoffrey R. Stone, professor at the University of Chicago Law School, said. “Mississippi’s 15-week law is inconsistent with that understanding of the Constitution. The Supreme Court may not be ready to overrule Roe outright. The conservative justices may be trying to do so piecemeal in order to look ‘moderate’ and take a few years to get there.”

The Center for Reproductive Rights, whose lawyers are representing Jackson Women’s Health Organization, Mississippi’s lone abortion clinic, argues the state’s 15-week law is unconstitutional under Roe v. Wade, as well 1992’s Planned Parenthood v. Casey, which affirmed the Roe ruling that abortion is legal. In both cases, the high court ruled that a woman’s right to an abortion was part of the constitutional right to privacy.

Where States Stand

As of 2020, most states in the South as well as Arizona, Idaho, North Dakota, Utah and Ohio, have laws that limit access to abortion. Three states outlaw abortion from the very start of pregnancy, meaning the first time a woman misses her period. Eight states, including Oklahoma and Texas, have “heartbeat” laws, banning abortions after six weeks of pregancy, when the fetus’ heartbeat becomes audible. Some of these laws will go into effect if Roe v. Wade is struck down.

In 2019, Mississippi’s Legislature passed a “heartbeat” bill. If justices should uphold the state’s 15-week law, Jarvis Dortch, a lawyer and former state legislator who is executive director of the American Civil Liberties Union of Mississippi, believes the state will ask the conservative 5th U.S. Circuit Court of Appeals to affirm the six-week law.

Outside of Mississippi, some states also restrict access to abortion with Targeted Regulation of Abortion Providers or TRAP laws. For example, the state may require an abortion to be performed in a hospital. But a hospital, under political pressure, may not be willing to grant admitting privileges to a doctor who performs abortions.

Why Justices Chose Mississippi

Mary Ziegler, legal historian and professor at Florida State University College of Law, was surprised that the Supreme Court made the “weird choice” of Mississippi’s 15-week law. She and other legal observers thought the court would pick a more restrictive ban like a “heartbeat” law. Ziegler said some national pro-life organizations like Americans United for Life write model bills for conservative state legislators to introduce. But Mississippi wrote its own 15-week bill. Ziegler says the Mississippi case just may have arrived before the Supreme Court for review first.

David S. Cohen is professor at Drexel University Kline School of Law and co-author of Obstacle Course: The Everyday Struggle To Get An Abortion In America. Laws like Mississippi’s, he said, attempt to “draw a line in the sand. What Mississippi is doing and what they want the Court to do is to push the timeline for when abortion can be made criminal back to 15 weeks (or earlier), and in doing so jettison the legal relevance of viability,” meaning the fetus’ ability to survive outside the womb. Babies are viable after 24 weeks, but because of recent advances in neonatal medicine and care, some babies born before 24 weeks may survive. The youngest baby ever to survive outside the womb was born at 18 weeks. If the high court upholds Mississippi’s 15-week law, Cohen said that means the court will “push the timeline back nine weeks for no medical reason.”

Ninety percent of abortions take place before 15 weeks, according to Stone, author of Sex and the Constitution: Sex, Religion, and Law From America’s Origins To The Twenty-First Century. Most women who want abortions after 15 weeks, said Stone, are poor women unable to marshal financial resources any sooner to pay for an abortion and perhaps to travel to a clinic out of state. Or they are women who had planned to keep their babies but changed their minds because of new circumstances: They lost their jobs, their health insurance, or their partners.

Tanya Britton, a former longtime “momma-baby nurse” who is former president of Pro-Life Mississippi, was waiting for the high court to take on Roe v. Wade. Britton was “pleasantly surprised” that the high court decided to hear a case from Mississippi. In 1966, she said, abortion was against the law in all 50 states. But Mississippi passed a law allowing an exception in the case of rape, the first of 19 states that decriminalized some hospital abortions before Roe v. Wade. By 1972, Mississippi allowed abortions in cases of rape or incest. National Right to Life calls Mississippi responsible for starting “America’s child holocaust,” adding, “an ‘exception’ is a euphemism for a child intentionally killed.”

Of course, Britton points out, “if you look at race relations back then,” in enacting the 1966 law, Mississippi was concerned less about children than about “great fear of someone who was White being raped by someone who was Black,” even though rapes at the time were often the other way round. After abortion became legal in 1973, Mississippi also pioneered “sidewalk counseling." To this day, pro-life activists continue to “counsel” outside Jackson Women’s Health’s pink clinic building, known as the Pink House, in Fondren.

Stone said he believes the high court is hearing the Mississippi case “because of who’s on the court.” The court has a conservative majority of six. A case needs only four votes before the court will hear it. Stone also said the conservative six “have demonstrated repeatedly that they have little respect for precedent when they don’t like the past decisions. They are almost certain to disregard the precedential importance of Roe and Casey.”

The Jackson Women's Health Organization is the lone abortion clinic in Mississippi. The sign bears evidence of being shot with a BB gun. Ann Marie Cunningham/MCIR

History and Religion Play Their Parts

Ziegler has written Abortion and the Law in America: From Roe v. Wade to the Present. She and Stone both point out that abortion was legal throughout the U.S. until the mid-1800s. “Then the doctors got involved,” said Ziegler. They wanted to be the sole abortion providers with no competition from makers of abortifacients or midwives and other medically knowledgeable women like the main characters in Kate Manning’s 2013 novel, My Notorious Life, and in the 2004 feature film Vera Drake.

The mid-19th century also saw the beginnings of a strong ongoing Protestant religious revival that may have inspired anti-abortion sentiment and laws. The Catholic church’s prohibitions on birth control and abortion go back many more centuries, but did not affect law and politics until the 1960s, Ziegler said. Certainly the Baptist church, the largest denomination in Mississippi, is opposed to abortion. In the 2016 documentary Jackson, pro-life activists say they want “to deliver to God an abortion-free Mississippi.”

No doctor in Mississippi — “the buckle on the Bible Belt,” as locals say, and arguably the most religious state in the union — will perform an abortion. At Jackson Women’s Health’s clinic, five out-of-state doctors rotate. In this state with the highest rate of teen pregnancy and limited sex education in schools, patients are mostly poor women of color. Outside the clinic this week, pro-life demonstrators were White.

What Happens Next?

Britton says “80 percent of Americans think we need some limits on abortions.” What can we expect if the high court upholds the 15-week Mississippi law?

Stone says if justices decide to uphold this law, that decision will “radically change, even overturn Roe v. Wade.”

Cohen demurs: “As always with the Supreme Court, they could surprise us. They may compromise; they may take a path we hadn’t considered.” If justices do uphold the Mississippi law, Cohen says “we’ll have what we’ve always had.” Women with means will find ways to have abortions, perhaps even traveling overseas. Poor women will be obliged to carry unwanted children to term.

In the meantime, according to the nonprofit Guttmacher Institute, which works to be “a primary source for abortion research and policy analysis,” conservative state lawmakers, emboldened by the Supreme Court’s decision, are likely to try to enact more restrictions on abortion in 2021 and 2022, especially in the South and the Midwest. Some will be hoping their particular bill will follow Dobbs v. Jackson Women’s Health Organization to the U.S. Supreme Court.

 Ann Marie Cunningham is a Columbia University Lipman Fellow for 2020 who will be working with the Mississippi Center for investigative Reporting. She is a veteran journalist/producer and author of a best-seller. Her work has appeared in The New York Times, Los Angeles Times, Technology Review, The Nation and The New Republic. Contact her at amc@mississippicir.org.