Civic Register
| 7.23.21

Mississippi Asks Supreme Court to Overrule Roe v. Wade in Upcoming Abortion Case
Is it constitutional for there to be any restrictions on pre-viability abortions?
What’s the story?
- The Supreme Court is expected to hear a case involving the constitutionality of restrictions on pre-viability abortions in its upcoming term, and the state of Mississippi has asked the Court to consider overruling the landmark abortion case Roe v. Wade. Oral arguments will be held in the fall after the Supreme Court’s next term begins in October 2021, and a decision in the case is expected in 2022.
- Known as Dobbs v. Jackson Women’s Health, the case concerns Mississippi’s ban on elective abortions more than 15 weeks into pregnancy except in cases of medical emergencies and severe fetal abnormalities. Mississippi enacted the Gestational Age Act in 2018, although a district court judge blocked it shortly thereafter and appeals have been unsuccessful to date.
- Specifically, the Court will consider: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” The Court declined to consider whether the law should be considered in light of its “undue burden” standard under Casey or the “balancing of benefits and burdens” under Hellerstedt; or whether abortion providers have third-party standing to invalidate a law restricting late-term abortions.
- In its latest legal brief for the case, the state of Mississippi wrote, “The stare decisis case for overruling Roe and Casey is overwhelming.” It continued:
“Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition. Roe based a right to abortion on decisions protecting aspects of privacy under the Due Process Clause. But Roe broke from prior cases by invoking a general “right of privacy” unmoored from the Constitution. Notably, Casey did not embrace Roe’s reasoning. And Casey’s defense of Roe’s result—based on the liberty this Court has afforded to certain “personal decisions,” fails. Casey repeats Roe’s flaws by failing to tie a right to abortion to anything in the Constitution. And abortion is fundamentally different from any right this Court has ever endorsed. No other right involves, as abortion does, “the purposeful termination of a potential life.” So Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.”
- While the state of Mississippi is calling for Roe to be overturned, that doesn’t mean the Court will issue a decision as broad as they have requested.
- The Supreme Court tends to follow the practice of stare decisis ― letting past precedent stand ― except in cases involving constitutional issues where there are “strong grounds” for overruling that precedent. The justices have latitude in determining how narrowly or broadly to apply that precedent.
- The uncertainty surrounding how broadly or narrowly the Supreme Court will rule on the issue is why the state of Mississippi asked for it to rule in its favor on narrower grounds if the justices are unwilling to overturn Roe and Casey:
“If this Court does not overrule Roe and Casey’s heightened-scrutiny regime outright, it should at minimum hold that there is no pre-viability barrier to state prohibitions on abortion and uphold Mississippi’s law. The court of appeals’ judgment affirming a permanent injunction of the State’s law should be reversed.”
What does the Supreme Court say about abortion rights?
- The Court’s most well-known abortion decisions came in a case known as Roe v. Wade (1973), which held that the Constitution protects a woman’s right to terminate her pregnancy. The Court held that the 14th Amendment protected personal privacy rights, including a woman’s decision about whether to carry the pregnancy to term and that only compelling state interests can justify limitations on that decision. It held that the state’s interest in protecting the mother’s health begins at the end of the first trimester, and its interest in protecting the fetus begins at the point of viability.
- The Supreme Court’s other landmark 1973 decision came in Doe v. Bolton. The Doe decision broadened the protections of Roe by putting states on notice that, similar to how states couldn’t make providing abortions illegal, states couldn’t use procedural barriers to make abortion access unreasonably difficult. It also noted that those requirements wouldn’t apply to laws protecting the religious & moral beliefs of religious or denominational hospitals & their employees.
- The Hyde Amendment, which prohibited federal funding for abortion through Medicaid, was first enacted in 1977 and survived legal challenges that reached the Supreme Court, as did state-level bills that similarly prohibited taxpayer-funded abortions. These decisions held that there is no statutory or constitutional requirement that the federal government or states fund either elective or medically necessary abortions.
- Planned Parenthood v. Casey (1992) overturned the trimester standard in Roe in favor of a viability standard, allowing states to adopt restrictions on first-trimester abortions so long as they don’t unduly burden a woman’s efforts to obtain an abortion before the fetus reaches viability. It reaffirmed Roe in three ways: a woman has a right to an abortion prior to viability; the state can restrict post-viability abortions as long as there are exceptions for the woman’s health; and that the state has legitimate interests in protecting the woman’s health and the life of the fetus. These findings resulted in Pennsylvania’s 24-hour waiting period, informed consent, parental notification, and record-keeping requirements being upheld; and the state’s spousal notification requirement being struck down.
- Stenberg v. Carhart (2000) concerned a Nebraska law that prohibited partial-birth abortions (technical term: dilation & extraction) but didn’t include an exception for abortions to save the mother’s life and could be interpreted broadly to include the more standard dilation & evacuation abortions, thus creating an unconstitutional undue burden.
- The Stenberg decision prompted the enactment of the federal Partial-Birth Abortion Ban Act, which was signed into law by President George W. Bush in 2003 and prohibited partial-birth abortions except when necessary to save the mother’s life. It faced immediate legal challenges, and the Supreme Court eventually upheld its constitutionality in Gonzales v. Carhart (2007).
- The most recent significant Supreme Court decision related to abortion came in Whole Women’s Health v. Hellerstedt (2016). It invalidated Texas laws that required abortion-providing physicians to have admitting privileges at nearby hospitals, and that their abortion facility meet the same standards as an ambulatory surgical center. The Court found that those requirements created an undue burden for abortion access, in violation of the standards it outlined in Casey.
— Eric Revell
(Photo Credit: iStock.com / JPecha)
The Latest
-
The Long Arc: Taking Action in Times of Change“Change does not roll in on the wheels of inevitability, but comes through continuous struggle.” Martin Luther King Jr. Today in read more... Advocacy
-
Thousands Displaced as Climate Change Fuels Wildfire Catastrophe in Los AngelesIt's been a week of unprecedented destruction in Los Angeles. So far the Palisades, Eaton and other fires have burned 35,000 read more... Environment
-
Puberty, Privacy, and PolicyOn December 11, the Montana Supreme Court temporarily blocked SB99 , a law that sought to ban gender-affirming care for read more... LGBTQIA+
-
Women Are Shaping This Election — Why Is the Media Missing It?As we reflect on the media coverage of this election season, it’s clear that mainstream outlets have zeroed in on the usual read more... Elections
This is a medical decision which should be in the hands of a woman and when necessary her physician. Mississippi. Let's review their illustrious history of equal rights, protection for women and children and sensible humane treatment of ANYONE not white male!
Men with nothing better to do than molest and suppress American women should find a way to HELP Americans as our SERVANTS! Get out of the anti-choice business, republicans.
Well I should say it is in the Constitution. LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS.
Abortion choice is a personal decision. The government has no right or authority to meddle in people. From a “republican” point of view, this is no different than their covid response, let the people make the choice. Only difference here is the covid is universal not personal. Covid, “republicans” abortion.
No and if Mississippi had any sense they'd leave well enough alone. All women should have the right to make decisions that impacts their bodies and their lives and legislators, as well as the right to lifers should respect that right. After all they are not the ones that would have to raise the child and they for sure don't know the circumstances that the woman lives under that results in having to make the decision to abort a fetus. Why the hell can't people learn to mind their onw god damn business. Don't they have enough to content with in their own lives that they need to stick their nose where it doesn't belong?
Simply put Roe V’s Wade stated a woman had a right to terminate a pregnancy prior to the beginning of the life of the child. The error was that they did made a mistake concerning when life starts. All medical organizations identify life starting at conception. If you believe the science abortion is giving a mother the right to end the life of their child, or murder.
It is a state issue and it is a violation of the baby’s right to “life, liberty, and the pursuit of happiness”. Murdering a child inside the womb is no less illegal than murdering the child outside the womb. The baby’s body is not the mother’s body, therefore the mantra “my body my right” does not apply.
This is another attempt by white men to control women’s bodies and other people with uteruses. Restricting any abortions will not prevent people from getting abortions, it will only increase shame and force pregnant people to seek and undergo dangerous procedures from questionable sources.
I’m not pro choice. However, the Supreme Court invented the right for abortion. I’m not a woman, so if you want an abortion, have at it. It is probably best. We don’t need anymore damaged, unaccountable, train wrecks voting for more “life should be fair policies.” I do find it funny these are the same people that have no problem restricting gun ownership (clearly outlined in the constitution) or wanting vaccine mandates. The cognitive dissonance is astounding.
Again. A woman's life and body, a health issue ,not the government's job in ANY way to restrict. A medical and wellness question between a woman and her DR. No one else.
Y is there always an effort by mostly white men and others to dictate medical care/family planning for the women in America? When men grow or artificially anatomically commandeer a vagina, maybe their two cents may matter. And in light of hypocrisy of disdaining abortion while supporting the death penalty, no support for impoverished families, perpetuation of low wages, and an educational system steeped in white supremacy that has contributed to the deterioration of American mentality and given rise to the cult of personality adherents who became TRAITORS to America on 1/6/21, abortion is their cudgel of choice? In other words, those so asinine as to challenge abortion access for a gender they are not while many more ills plague majority of Americans smells of 💩! Also, why is it the mostly welfare states of the south seek these sorts of measures while their states suffer in the areas of healthcare, education, and other matters related to the quality of life of their residents?
Overturn this. Planned Parenthood must be defunded. Put restrictions on Abortions. Regrets? Life?
We cannot go back! Abortions will not stop being performed because they are illegal, they will just return to the days when rich women left the country to get safe abortions while poor women sought illegal abortions, many of which killed those women. The people who protest abortions are mostly religious and do not understand the problems inherent in making abortions illegal. I personally have never had an abortion, nor would I have had one, but I understand the problems inherent in illegal abortion. What is needed is more education that actually addresses sex and realistic discussions about responsibility and birth control. Most people do not see abortion as birth control or make the decision easily. The attempts to shame abortionists are ridiculous especially since some of the protestors seek abortions themselves while making the excuse that their abortion is necessary while others are not. Making anything illegal has never resulted in stopping anyone from committing the crime, it just punishes the people who commit the crime. Punishing women for abortion is not the answer. How about holding men responsible for the pregnancies, making them pay child support, punishing them for causing the pregnancy, holding them just as responsible as the women they impregnated? It seems men who hold power want to punish women for something they participate in plus many of them have provided abortions for mistresses, but it suits their political career to make abortions illegal for poor women since their women can leave the country to get safe abortions. Sorry, this is a rant, but I feel strongly about the hypocrisy of anti-abortionists who support death by other means and do not understand the reality and probaby do not teach their chidren about sex and responsibility.
While I am personally opposed to abortion except in extreme circumstances, it is not the government's role to unreasonable prohibit all abortions. I say let Roe v Wade stand.
We have to stop letting republicans create chaos just for the sake of chaos. If all they can do is waste time and money attacking rights, and drafting legislation for problems that don’t exist then they shouldn’t be working in congress! Stop allowing them to play chaos politics with peoples lives!
There’s not a god damn thing in the constitution that says some old white guy who failed high school biology gets to tell me what to do with MY BODY. Mind your own business you fucking creeps.
The standards for viability keep changing as we develop better methods of caring for premies. How is viability determined and who sets that standard. For me there has always been a question between a woman’s right over her body and the rights of the unborn. I have never supported the right to an abortion past the first trimester. Even then, a woman should be provided with full information as to fetal development during that first trimester so that she be fully aware of the fact that at the very least, she is snuffing out a potential life. It is a decision which should be taken very seriously. Past the first trimester, abortion should be an option only if a mother’s physical life is in jeopardy. Mental well being doesn’t come into play at this point. I encourage contraception and self control and taking mindful responsibility for ones actions. Stupidity doesn’t count.
BLLAAARRRFFF! … … … If the Supreme Court rules in favor of limiting established and long practiced women’s rights, it will be time to reform the court from being dominated by Justice’s totally beholding to the views of a distinct minority of the country. The fact that the war on Roe v Wade is and has been an ongoing and highly unethical campaign organized and funded by the Federalist Society - complete with mob-like shell organizations to fund legal representation of plaintiff’s to bring chosen cases to the lower courts in order to elevate those cases to the Supreme Court, directly fund Republican AG’s to draft amicus briefs, and help coordinate the case loads for favored conservative-leaning judges to increase their stature. … … … This is all done with complex shell-like organizations to essentially launder their wealthy donor’s money to control the country’s laws - much of it to ensure that poorer people (who cannot simply go to another state or country for abortions) will keep procreating so the wealthiest can maintain a large and compliant workforce to exploit. … … … While the Federalist Society may not be acting illegally, they are definitely acting unethically by ‘managing’ the judiciary to become what their donor’s want and to bend the rules when they can in their favor. … … … I would encourage a re-thinking of the Supreme Court in terms of number of Justices, term limits and confirmation procedures in an attempt to ensure that the Supreme Court truly represents all of the people and not just the chosen few. … … … Also, I would like legislation to ensure that organizations like the Federalist Society, which are so intimately involved in our governance, have full transparency including identified donations and donors, elimination of mob-like tactics with shell organizations to hide cash flows and a full public accounting of where and how their donor funds are spent. I am a little tired of lawyers or lawyer-based organizations being somehow above the rules that pertain to everyone else; being untouchable and unaccountable to the public who are the ones most burdened by their actions.
Roe is settled law. The Supreme Court has ruled so. Reversing course at this point will only set us on the path of black market abortions and women dying. I hardly recognize this country anymore.
Absolutely ludicrous that it’s even seen as an option to overrule roe vs wade, especially for religion!! Stop forcing your religious policies on us!