Democrats are bracing for the US Supreme Court’s December 1 arguments on abortion in Dobbs v. Jackson Women’s Health Organization, expecting the draconian justices to issue a decision that eats into the heart of Roe v. Wade.
Mississippi pro-lifers want to shorten Roe’s viability clause to 15 weeks and may succeed now that devout Catholic Amy Coney Barrett is on the Court. Roe states that a woman has a right to abort her fetus until it can survive outside the womb at between 23- and 24-weeks’ gestation.
Asked if the precedent should be upheld or overturned, 60 percent of voters said Roe should be upheld while 27 percent said it should not, according to a Washington Post-ABC News poll.
Expectations are that the Supreme Court will not overrule Roe, because doing so would destroy its own validity. “No, I don’t think that we’re going to see an outright overturning of Roe vs. Wade,” said Jeannie Suk Gersen, a Professor of Law at Harvard Law School. “I think we’re going to see something more along the lines of saying, ‘we’re not overturning, but here we’re clarifying.'”
“They’re probably going to do something that clarifies the meaning of “undue burden,” on married women seeking an abortion, she said. The Court will “clarify what ‘undue burden’ means in a way that makes abortion harder to obtain. But overturning Roe altogether, it just would be so embarrassing to the court and so bad for its legitimacy.”
Gerson added, “It goes back to the notion that there are certain things that are so fundamental to what it means to be a human being that no government can take that from. It’s privacy. And so privacy became a concept that housed the collection of things that human beings consider essential to concepts like dignity and self-determination.”
Lower Courts Toss Out Mississippi’s Case
In December 2018, President Obama’s appointee Judge Carlton Reeves of Mississippi’s Southern District initially struck down the anti-abortion law.
Jackson Health, the abortion providers, had challenged the law on March 20, 2018, immediately after Governor Phil Bryant signed it, pledging his commitment to making Mississippi “the safest place in America for an unborn child.”
“There is no legitimate state interest strong enough, prior to viability to justify a ban on abortion,” Reeves wrote in his November 20, 2018 decision.
Reeves called the law “pure gaslighting” on the part of legislators pretending to care about women’s health while not “lifting a finger to address the tragedies lurking on the other side of the delivery room, such as high infant and maternal mortality rates.” The deaths are all too common in Mississippi’s substandard health care system.”
In a scalding decision, Judge Reeves further stated:
“This court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.”
He also commented on the “sad irony” of men like him deciding on women’s reproductive rights.
“The fact that men, I included, are determining how women may choose to manage their reproductive health is a sad irony not lost on the court,” Reeves wrote.
Even the arch-conservative 5th US Circuit Court of Appeals ruled against narrowing Mississippi’s viability clause for the same reason: it contradicted Roe.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability,” the 5th Circuit ruled.
Only clinic in the state
The Jackson Women’s Health Organization is now the only remaining abortion provider in the state of Mississippi. It serves predominantly African-American women and is open only three days a week. Hundreds of thousands of people seek abortions every year in the US.
Recently, a protestor outside the clinic yelled into a megaphone, “I pray that you would just open the flood gates of terror in such a way that it would help them see that they are going to die and go to Hell if they do not trust you as their Lord and savior.”
Inside, a patient told the New Yorker she talked to her husband about getting an abortion: “This is a decision we made. I could have made my own decision. I feel like that’s taken away from me. I feel like somebody else is telling me what I should do with my body. And it’s not right. It’s my body. It’s my decision. It’s my choice.”
A clinic employee said, “for safety purposes, we always use a rental car so that our personal car isn’t able to be tracked or located. Just with the history of violence against abortion providers in this country, we try to take every precaution to be as safe as possible. So actually back in March of this year, my identity was somehow made known to the protesters and then they ended up harassing the clinic where I work.”
“I could have made my own decision. I feel like that’s taken away from me. I feel like somebody else is telling me what I should do with my body. And it’s not right. It’s my body. It’s my decision.”
All abortions are much safer than actually carrying a pregnancy to term. Regardless, states are deliberately passing unconstitutional laws precisely to get litigation in front of the 6-3 conservative majority on the Supreme Court. “The Court’s majority now is anti-abortion. I think it’s fair to say,” said David Remnick, the Editor of the New Yorker. He compared the current anti-abortion litigation to the southern resistance to Brown v. Board of Education, the 1954 ruling that state laws establishing racial segregation in public schools are unconstitutional.
Spotlight Intense Due to Texas Heartbeat Law
Briefs written to uphold Roe note the Court’s historic 1973 ruling is based on the Fourteenth Amendment protection of personal, individual rights fundamental to freedom and dignity.
They say Roe’s 23–24-week limit on abortion protects both the individual’s right while accommodating the government’s interests, and Mississippi’s arbitrary and capricious 15-week viability limit offers no reasonable alternative to that dictate.
“The abortion case is already positioned to be one of the highest-profile arguments of the 2021-22 term because the state had specifically asked the court to overrule its landmark decisions in Roe v. Wade and Planned Parenthood v. Casey….“ SCOTUS Blog’s Amy Howe writes.
“But the spotlight on the case became even more intense… when the Supreme Court turned down a request to block the enforcement of a Texas law that prohibits abortions after the sixth week of pregnancy.
“The majority, over dissents by Chief Justice John Roberts and the Court’s three liberal justices, nonetheless allowed the Texas law to go into effect while litigation challenging its constitutionality continues in the lower courts,” Howe writes.
As Justice Stephen Breyer told NPR’s Nina Totenberg, “What the Court did was “very, very, very wrong.”
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