The Supreme Court reconsiders abortion rights via Mississippi law challenging Roe v. Wade By Daniel Tagliarina
On Wednesday December 1, 2021, the Supreme Court is hearing oral arguments in its most recent abortion case. The case is Dobbs v. Jackson Women’s Health Organization, and involves a challenge to Mississippi’s ban on nearly all abortions after 15 weeks gestational age.
Mississippi’s law was passed in 2018 and prohibits abortions after 15 weeks, except for “medical emergencies” and in case of “sever fetal abnormality.” There are no other exceptions in the law. This 15-week cut off comes before viability, which under current case law is the point where abortion restrictions may become more prohibitive. Viability, the point at which a fetus is able to survive outside of a uterus, is generally the point where courts change how they balance the interests of a pregnant person to terminate a pregnancy and the interests of the state in allowing fetuses to be carried to term.
Both the district court and the Court of Appeals for the Fifth Circuit ruled against Mississippi, finding the law goes too far in restricting access to abortions pre-viability. This is notable for two reasons. First, most of the abortion cases that make it to the Supreme Court arise when abortion providers are asking the Court to reconsider a law that has been upheld by lower courts. In this case Mississippi lost twice and is asking the Court to reverse lower rulings in order to enforce their law. Second, this case is notable because the Fifth Circuit Court of Appeals is one of the more conservative court of appeals in the U.S. and they did not uphold this law.
In granting review, the Supreme Court agreed to decide the legal question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” The framing of the question suggests the case will turn on the question of the appropriateness of viability as the continued standard for when laws may be more restrictive in prohibiting abortions. However, a larger issue underlies this case.
Mississippi insisted when asking for review that the case can be considered without determining the continued status of Roe v. Wade and Planned Parenthood v. Casey, the Court’s current ruling abortion precedents. However, after the case was accepted, Mississippi switched to directly calling for the Supreme Court to overturn both Roe and Casey. This is a highly unusual bait and switch, which could work for Mississippi and abortion opponents, or it might anger the justices who now find themselves being asked to reconsider what many have asserted are settled precedents. This includes two of Trump’s three nominees who have asserted during their confirmation hearings that Roe and Casey are settled law. Whether they stick by their sworn testimony remains to be seen.
Photo by Supreme Court
While the Supreme Court has already heard oral arguments regarding Texas’s abortion ban this year, this Mississippi case is different in scope. The Texas case, which was really two different cases, had to do with who is allowed to sue to challenge the Texas law. This is an important procedural issue, but does not get directly to the issue of abortion rights. The Mississippi law, however, directly implicates abortion rights, and possibly other constitutional rights as well.
In their written arguments, Mississippi argues that there is no constitutional right to an abortion, and there is no constitutional right to privacy. In a brief supporting the Mississippi law, the group Texas Right to Life—whose top lawyer helped create the Texas abortion ban—argues that ruling in favor of Mississippi will also call into question the cases Lawrence v. Texas and Obergefell v. Hodges. The Lawrence ruling struck down bans on sodomy as unconstitutional, based in part on privacy rights. The Obergefell ruling struck down bans on same-sex marriage, which relies, in part, on the Lawrence ruling. This means that the potential implications of this case extend far beyond just access to safe, legal abortions, but can implicate major legal victories for basic equality for LGBTQ+ individuals, as well as basic privacy rights for everyone.
However, even limited to abortion rights, the ruling could be devastating for women’s health in Mississippi, and in the 26 states posed to fully ban abortion if Mississippi wins their case. The evidence is clear that banning abortions does not end abortions. Banning safe, legal abortions means that more unsafe abortions will be performed. One recent study suggests that there could be a 21% increase in pregnancy-related deaths if abortions are banned. As it is now, the U.S. lags behind other developed nations regarding maternal mortality rates. In fact, the U.S. has anywhere from 2 to nearly 10 times as high a rate of pregnancy-related deaths as other developed nations. In the U.S., pregnancy is an inherently dangerous choice, and it is made worse when it is not even a choice that we allow pregnant people to make for themselves.
In addition, we should not ignore the specifics of Mississippi’s public health crisis. According to the Mississippi Department of Health, Mississippi has a pregnancy-related mortality rate that is 1.9 times as high (33.2 deaths per 100,000 live births) as the national average (17.3 deaths per 100,000 life births). When separated out by race, the numbers are even more alarming, with Black women in Mississippi having a maternal mortality rate of 51.9 deaths per 100,000 live births. This number for Black women is nearly three times the maternal mortality rate for white women (18.9 deaths per 100,000 live births). Mississippi also leads the nation with the highest rate of births to unmarried mothers, premature births, and babies with low birthweight, all according to the CDC. Finally, Mississippi also has the highest infant mortality rate in the U.S. at 9.07 deaths for every 1,000 live births. Again, there are racial disparities between the rate of death for white babies and Black babies, with the rate nearly twice as high for Black compared to white babies.
Taken together, these statistics indicate that, regardless of what the Supreme Court does, pregnancy is incredibly dangerous in the U.S., generally, but especially in Mississippi. While the Mississippi abortion ban claims to be concerned with maternal health and preserving life, the current state of pregnancy-related health care says otherwise. Without addressing these underlying public health issues, things will remain bad for pregnant people in Mississippi. Removing access to safe abortions will only exacerbate these problems, while offering no real solutions to existing health problems. These are not burdens that are carried evenly by all racial groups, either. What is additionally alarming is that this case implicates other privacy rights, especially rights to sexual and marital intimacy for LGBTQ+ individuals.
While the three Democratically appointed justices are likely to vote against the Mississippi law, and Justices Thomas and Alito are likely to vote in favor of the law, the decision comes to do Chief Justice Roberts (who has previously supported laws restricting abortion access) and the three justices Trump nominated to the Court. It is unclear how this case will resolve, but the stakes of the decision are incredibly stark.
Daniel Tagliarina is Associate Professor of Political Science and Pre-Law Adviser at Utica College
