Mississippi’s attorney general urged the Supreme Court in a Thursday brief to overrule Roe v. Wade next term when the justices review Mississippi’s ban on virtually all abortions after 15 weeks of pregnancy.
Calling the court’s precedent on abortion “egregiously wrong,” Attorney General Lynn Fitch (R) explicitly set the dispute over Mississippi’s restrictive law on a collision course with the landmark 1973 decision in Roe that first articulated the constitutional right to abortion.
“This Court should overrule Roe and Casey,” Fitch wrote, referring also to the court’s 1992 decision in Planned Parenthood v. Casey. “Roe and Casey are egregiously wrong. They have proven hopelessly unworkable. … And nothing but a full break from those cases can stem the harms they have caused.”
Supreme Court precedent tracing back to Roe prohibits states from banning abortion before fetal viability, which occurs around 24 weeks. The Mississippi law to be reviewed during the court’s upcoming term, which begins in October, creates only narrow exceptions from its 15-week ban.
“The court cannot uphold this law in Mississippi without overturning Roe’s core holding,” Nancy Northup, president of the Center for Reproductive Rights, told reporters in May when the court took up the case. “The stakes here are extraordinarily high.”
The Mississippi restriction, passed in 2018, is just one of hundreds of abortion measure state legislatures passed in recent years, many with the explicit goal of overturning Roe v. Wade. This year alone, lawmakers in 46 states have introduced more than 500 abortion restrictions, according to an April analysis from the Guttmacher Institute. Of those, more than 60 measures have been enacted.
Abortion rights advocates have warned that overturning Roe would have a cascading effect at the state level, where anti-abortion activists have been carefully preparing for just such a contingency amid the Supreme Court’s conservative shift over recent years.
Abortion opponents now face a far more sympathetic Supreme Court bench than even just one year ago. In a 2020 abortion ruling, a bare 5-4 majority voted to block a Louisiana abortion limit, with Chief Justice John Roberts casting the deciding vote alongside Justice Ruth Bader GinsburgRuth Bader GinsburgTo infinity and beyond: What will it take to create a diverse and representative judiciary? Justice Ginsburg's parting gift? Court's ruling on Texas law doesn't threaten Roe — but Democrats' overreaction might MORE and the court’s three other liberal justices.
But former President TrumpDonald TrumpOhio Republican who voted to impeach Trump says he won't seek reelection Youngkin breaks with Trump on whether Democrats will cheat in the Virginia governor's race Trump endorses challenger in Michigan AG race MORE's replacement of the late Ginsburg, a liberal stalwart, with Justice Amy Coney BarrettAmy Coney BarrettNew Hampshire state representative leaves GOP over opposition to vaccine mandate Barrett: Supreme Court 'not comprised of a bunch of partisan hacks' To infinity and beyond: What will it take to create a diverse and representative judiciary? MORE, cemented a 6-3 conservative court and threw the fate of longstanding federal abortion protections into question.
Mississippi’s appeal comes after losing two rounds in the lower courts. In 2019, the U.S. Court of Appeals for the 5th Circuit held that the state’s restriction was an unconstitutional ban on a woman’s right to terminate an unwanted pregnancy before viability.
The appeals court found that Mississippi’s restriction violated “an unbroken line dating to Roe v. Wade” in which the Supreme Court has consistently reaffirmed “a woman’s right to choose an abortion before viability.”
But Fitch, in her 60-page brief filed Thursday, made no secret of Mississippi’s desire to see that line of cases broken.
“On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight,” Fitch wrote. “Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion.”
A decision in the case, Dobbs v. Jackson Women's Health Organization, is expected in summer 2022.