Supreme Court must see through Mississippi's fictitious claims

This week, the U.S. Supreme Court will consider an abortion rights case Dobbs v. Jackson Women’s Health Organization. When it does, it will hear not only suspect legal arguments on behalf of Mississippi’s plainly unconstitutional 15-week abortion ban designed to overturn Roe v. Wade but also dubious claims.

For example, the state suggests in its briefs that birth control is effectively universally available and free and that women have achieved essentially equal economic security and success. This, the state argues, renders abortion care no longer necessary, so the court should stop recognizing it as a constitutional right.

These claims are false, and it would be devastating if fanciful “facts” provided the justification for upending nearly 50 years of precedent recognizing the right to abortion. The court has adopted specious facts as true before, notably in the context of voting rights, to devastating effect; it must not do so again. 

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First, even if Mississippi’s assertions were true, people capable of pregnancy would still need access to abortion. Abortion is an essential health service for all people who may become pregnant, especially for people who already face steep and multiple barriers to accessing it — low-income women, women of color, young women, and immigrants. And people seek abortion care for many reasons the state fails to consider. With Roe, the Supreme Court recognized that access to abortion is a constitutional right. This right does not depend on socioeconomic status or access to other forms of health care. 

Second, Mississippi’s claims are empirically and demonstrably false — not factual. Take the state’s claim that “contraceptive advances ‘undercut’ any claim that a constitutional right to abortion is necessary for women to ‘control their reproductive lives’ and participate fully in economic and social life.” Mississippi presumes that contraception is universally accessible and effective; neither is true. Over 19 million women in America live in contraceptive deserts, meaning that full contraceptive care is practically inaccessible in large swaths of the country.

Contraception is also not fail-proof. Mississippi claims that contraception failure rates would reach 10 percent only if unreliable approaches like withdrawal are considered. But failure rates actually range widely among Food and Drug Administration (FDA) approved contraceptive methods, well exceeding 10 percent in some cases. While the failure rates of certain methods (like intrauterine devices, hormonal implants, and injections) are close to 4 percent, male and female condoms have a 13 and 21 percent failure rate, respectively. Meanwhile fertility awareness-based methods’ failure rates reach 23 percent. Properly used contraception does not always prevent pregnancy more often than Mississippi acknowledges.

And contrary to Mississippi’s assertion that “most women had no out-of-pocket costs for their contraception” — a claim made by citing a study that looked at only privately insured women — in reality, out-of-pocket costs persist. For the 11 percent of women in the U.S. who are uninsured, the average annual out-of-pocket costs for contraceptives range from a couple of hundred to a couple of thousand dollars. 

Finally, Mississippi asserts that women have economic and political power that negates the need for abortion, stating that “more women than men now enroll in law school and medical school” and “record numbers of women serve in state legislatures and Congress.” Although women may enter the legal and medical fields in greater numbers, gendered leadership gaps persist. Women, for example, make up only 19 percent of managing law partners. And Mississippi fails to mention the plaguing and persistent wage gap: Women make just 82 cents for every dollar a man makes, with Black and Hispanic women earning far less. 

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Mississippi is the only state without a law requiring equal pay for equal work. There is therefore a deep irony to Mississippi’s rose-tinted implication that, in a phrase, women can have it all – that “laws enacted since Roe ‘facilitate the ability of women to pursue both career success and a rich family life.’” The laws that Mississippi credits with this feat include those “addressing pregnancy discrimination, requiring leave time, assisting with childcare, and more[.]” Headway has been made, certainly, since 1973, but work toward gender equity is not nearly finished.

The statistics bear this out. The United States has the highest rate of maternal mortality among developed countries. Fewer than one in four private-sector workers have access to any paid leave, and fewer than one in seven children eligible for child care subsidies even receive them.

Similarly, gender parity in political power is far from reality. Although more women serve in elected office now than in 1973, the numbers — just 26.9 percent of members of Congress and 31.1 percent of state legislators are women — are still paltry considering women make up over 50 percent of the U.S. population. Further, the compounding effects of the gender pay gap and meager compensation for many state lawmakers disproportionately put public service out of reach for women.

The court must reject Mississippi’s fictions or risk undoing nearly 50 years of precedent based on assertions that are sensational and fringe. Respect for facts, respect for precedent, and respect for individuals’ reproductive autonomy make clear that the right to abortion must stand.

Elyssa Spitzer is a policy analyst for women’s health and rights with the Women’s Initiative at the Center for American Progress.

Osub Ahmed is a senior policy analyst for women’s health and rights with the Women’s Initiative at the Center for American Progress.