Welcome to D-Day: The Case That Could End Legal Abortion Reaches The Supreme Court

Oral arguments begin this week on the Mississippi abortion ban that could overturn Roe v. Wade.

By Caitlin Cruz | November 29, 2021 | 10:35pm

Abortion Politics

Welcome to D-Day: The Case That Could End Legal Abortion Reaches The Supreme Court

The biggest abortion case in a generation is before the Supreme Court: Oral arguments begin Wednesday on Dobbs v. Jackson Women’s Health Clinic, which will challenge the legality of abortion as we know it.

When the court decided to hear this case, the state of Mississippi presented three questions to the highest court, but the court took up one: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” Science has generally deemed fetuses to be viable around 22 to 24 weeks, and Mississippi lawmakers passed a ban on the procedure at 15 weeks.

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This is the first time the Supreme Court will rule on the constitutionality of pre-viability bans in pregnancy. Viability became the measuring stick for abortion regulation because of Justice Harry Blackmun’s work at the Mayo Clinic, where he worked as a general counsel before his time on the highest court. Back in 1973, Blackmun ruled pregnant people had the right to control their bodies through the first trimester because of a fundamental “right to privacy” in the Fourteenth Amendment. Once the pregnant person reaches their third trimester, or viability outside the womb, the state can enact abortion restrictions, according to Roe. So that’s where we started when the country legalized the right to abortion through the courts with the states eventually having some say in your medical decisions — and it’s been going downhill from there.

Since then, cases like Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992 eroded the Supreme Court’s framework to be about “undue burden” placed on the person seeking an abortion. What is an “undue burden”? In the opinion, the justices describe it as “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” There’s literally nothing encoded in law spelling out what a “substantial obstacle” means, but it sure sounds salient and significant!

Instead, important-sounding but useless language has led to generations of targeted restrictions on abortion providers (TRAP laws), slowly whittling away at the right to an abortion. For example, the state of Mississippi wants to outlaw abortion after 15 weeks and already has a mandatory waiting period for patients. “If Mississippi’s bid to have Roe vs. Wade overturned is granted the Supreme Court, we expect about half the states in the United States to criminalize abortion. And that would be devastating to people across the country who need access to those services,” Center for Reproductive Rights President and CEO Nancy Northup told reporters last week. “People will be unable to access abortion services and would have to be crossing at least one, if not more, state lines.”

While there have been bright spots in abortion jurisprudence, none of it is getting the law back to the expanse of 1973, where government had little ability to interfere in your choices. “The U.S. is in a stark period of regression compared to the rest of the world. Other countries are liberalizing their abortion laws,” Northup said. While Mexico, Argentina, and Benin are opening up access to abortion (to varying degrees), state legislatures enacted over 100 abortion restrictions in one year — the most ever since 1973.

When digging into the facts of the state of Mississippi’s case, Center for Reproductive Rights senior litigation director Julie Rikelman said the state is presenting nothing new. Rikelman successfully argued before the Supreme Court in June Medical Services v. Russo in March 2020 and will represent Jackson Women’s Health Clinic on Wednesday. “When the court looked at these issues before, one of the things that it said incredibly clearly was that a woman’s right to make this decision before viability was a rule of law and a component of liberty,” Rikelman said. Since the ruling in June Medical Services, “nothing has changed. Nothing has changed in terms of the facts. Nothing has changed in terms of the law. So there is just no basis for the court to reach a different outcome today than it has in the past on this right.”

The respondent in this case, Jackson Women’s Health Organization, is the last abortion clinic in Mississippi, a state where the health of its citizens is never considered a priority unless it’s about uteruses or sex. Jackson Women’s Health Organization, also known as the Pink House, sees about 3,000 patients each year. Because of S.B. 8, the clinic expanded its days of abortion provision to five to six days a week earlier this year. Clinic director Shannon Brewer said a quarter of her patients are from Texas. The Pink House is now booked up to three or four weeks out because of the influx of out-of-state patients.

But she doesn’t lose sight of the reason the clinic has fought Mississippi’s anti-abortion laws up to the Supreme Court. “The ban is racist. It’s classist people who have the means to travel and and go anywhere to get them to get an abortion or those those are the ones who won’t be affected. But the ones who the poor women are going to be the ones who are affected by this,” Brewer said. “They’re going to be pushed further and further into poverty.”

Because Supreme Court justices like to pretend they don’t give public statements or respond to the public (they do, they just do it in paid speeches), granting cert or deciding to hear a case is as close to a public statement as you get from the nine allegedly smartest lawyers in the country. It means at least four justices have something they want to say, and it’s reasonable to assume this conservative supermajority has something anti-abortion to say as Clarence Thomas (the longest serving justice) is vocally anti-abortion. And it’s very likely that the Supreme Court will hold out for a decision until the spring, leaving us worried as all hell while their clerks move commas around.

Brewer says Dobbs is the case everyone should be worried about. “I’ve been asked a lot of times if this is a scary thing that’s going on, just like all of the other cases we’ve done over the years. And the other cases have worried me, but not to the point of this one,” she said. “This case has worried me more than any other one because I know this is going to be detrimental to women not only here in Mississippi, but in so many states, especially the southern states. Because believe me, if they decide to do it, most of the Southern states are going to ban abortion immediately. And that’s not going to be good for women. The women who need it the most.”