Anti-abortion advocates are hoping that their holy grail could finally be within reach, cheering Mississippi’s new push to get the Supreme Court to overturn the 48-year-old Roe v. Wade decision.
While the state’s maximalist arguments against the landmark abortion rights ruling may not prevail even with conservatives holding a 6-3 majority on the court, the right sees this as its best opportunity in years.
On Thursday, Mississippi Attorney General Lynn Fitch (R) filed a brief with the Supreme Court in a case involving a challenge to the state’s law banning elective abortions after 15 weeks. Her office argued that the court’s decisions in Roe and the 1992 case Planned Parenthood v. Casey solidifying a constitutional right for women to obtain abortions were wrongly decided.
“This Court should overrule Roe and Casey,” the filing reads. “Roe and Casey are egregiously wrong. They have proven hopelessly unworkable. … Nothing but a full break from those cases can stem the harms they have caused.”
Anti-abortion groups quickly applauded Fitch’s assault on Roe.
“Attorney General Fitch’s masterful brief makes clear that the Supreme Court’s abortion jurisprudence is hopelessly unworkable, ungrounded in history or facts, and has tied the hands of pro-life Americans and their elected representatives for decades. It is long overdue to let this debate move forward democratically,” Marjorie Dannenfelser, the president of Susan B. Anthony’s List, said in a statement.
“As today’s brief makes clear, updating America’s abortion jurisprudence is necessary and long overdue,” agreed Jeanne Mancini, the president of March for Life, in her own statement. “The law at issue before the Supreme Court concerns moderate limits on the abortion of a child who has developed past 15 weeks, with a fully formed nose and lips, eyelids and eyebrows – when her humanity is beyond debate. Limiting gruesome late term abortions is compassionate and popular; and the norm in countries that have allowed their laws to catch up with the science.”
The effort comes as part of a ramped-up assault on abortion access across the country, spurred on by the conservative gains at the Supreme Court and the Biden White House’s reversal of the Trump administration’s anti-abortion policies and legal arguments.
Conservatives have long attacked abortion at every level — from the federal budget to local zoning regulations for clinics — but overturning the high court ruling that enshrined a woman’s right to terminate an unwanted pregnancy is anti-abortion activists’ dearest dream.
Catherine Glenn Foster, the president and CEO of Americans United for Life, says that the court’s current balance could potentially lead to significant gains for her movement.
“We never know exactly how the justices will rule,” Foster said. “We do know that the justices, a majority of them, claim to be committed constitutionalists, textualists, originalists and that they will look to the text of the U.S. Constitution. We know that the constitution does not protect the right to destroy human life in the womb. And it does not prohibit states from protecting our fundamental right to life. And so we’re looking forward to the debate in the court. We expect that it’s going to be free and frank.”
In the last major abortion rights case before the Supreme Court, last year’s June Medical Services v. Russo, Chief Justice John Roberts joined with the four liberal justices to strike down a Louisiana law that required doctors performing abortions to have admitting privileges at a nearby hospital.
Less than three months after that decision, the liberal wing of the court’s most senior member, Ruth Bader GinsburgRuth Bader GinsburgAbortion rights face most difficult test yet at Supreme Court Mississippi’s attorney general asks Supreme Court to overturn Roe v. Wade 10 books that take readers inside the lives of American leaders MORE, died and was replaced by former President TrumpDonald TrumpTrump hails Arizona Senate for audit at Phoenix rally, slams governor Arkansas governor says it’s ‘disappointing’ vaccinations have become ‘political’ Watch live: Trump attends rally in Phoenix MORE’s nominee Amy Coney BarrettAmy Coney BarrettAbortion rights face most difficult test yet at Supreme Court Overnight Health Care: Biden officials says no change to masking guidance right now | Missouri Supreme Court rules in favor of Medicaid expansion | Mississippi’s attorney general asks Supreme Court to overturn Roe v. Wade Mississippi’s attorney general asks Supreme Court to overturn Roe v. Wade MORE, altering the delicate ideological balance at the court that had been fending off the more onerous abortion restrictions at the state level.
The court could choose to decide the case without rolling back Roe while still handing conservatives a major victory.
Foster said that she would see it as a significant achievement if the court ends up upholding Mississippi’s law even if it declines to take Fitch up on the invitation to eliminate federal abortion rights.
“That would be a huge encouragement,” she said. “We’re not expecting that Roe v. Wade would necessarily be overturned with this lawsuit. It could be, just as it could have been in June Medical, just as it almost was in Casey and every other case that the court has heard, but we’re not expecting that with this one. We are expecting that the court will uphold this law and that we’re going to continue to see the kind of incremental progress that we’ve been able to achieve over recent years.”
The case risks inflaming the increasingly partisan battle over the Supreme Court in recent years. Some on the left have called for structural reforms such as court packing out of concern over an increasingly rightward shift in its opinions over the years.
And last year, conservative leaders lashed out at the court after a series of high-profile losses that included the June Medical decision, a fight over the “Dreamers” immigration program and workplace protections for LGBT employees.
The spat pushed Trump to vow to nominate even more conservative justices amid his 2020 election campaign.
With the Mississippi case likely to be decided amid next year’s midterm elections campaign, almost any ruling would thrust the court back into the political fray.
Since the June Medical decision, conservative state legislators across the country have ramped up their efforts to impose laws chipping away at abortion access. According to reproductive rights organization the Guttmacher Institute, states have already passed more abortion restrictions in 2021 than in any other year since Roe was decided in 1973.
Four states — Idaho, Oklahoma, South Carolina and Texas — passed laws this year banning abortions at six weeks into a pregnancy.
In Arkansas this week, a federal judge blocked a recent law that would ban virtually all abortions, except in some cases of medical emergencies, similar to a law that was passed in Oklahoma earlier this year.
Reproductive rights advocates see the escalation as evidence that conservatives have been emboldened by a judiciary that is now stocked with Trump appointees.
“The nearly 600 abortion restrictions enacted over the past decade — and now a record 97 in the first half of this year alone — are part of a coordinated anti-abortion campaign with the end goal of banning abortion across the county,” Elizabeth Nash, a state policy researcher at Guttmacher, said in an emailed statement.
“These coordinated attacks on abortion rights are an unprecedented threat to reproductive rights,” Nash said. “Between the record number of anti-abortion laws enacted, uniquely cruel twists to already harmful restrictions, and the Supreme Court agreeing to take on a blatantly unconstitutional threat to Roe, 2021 has clearly become a defining year for abortion rights in the United States.”