WASHINGTON – In a landmark case watched by abortion advocates and opponents, the Supreme Court will hear oral arguments Dec. 1 on a 2018 Mississippi law challenging nearly 50 years of legal access to abortions.
The case, Dobbs v. Jackson Women’s Health Organization, considers the constitutionality of Mississippi’s ban on most abortions after 15 weeks of pregnancy.
The ban is not currently in effect as the state awaits the high court’s decision, which is not likely until next year.
A ruling in favor of Mississippi would overturn the precedent set in Roe v. Wade, a 1973 Supreme Court decision that effectively legalized a woman’s right to choose to have an abortion.
Jackson Women’s Health has been the only abortion clinic in Mississippi for over a decade, according to Hillary Schneller, senior staff attorney at the Center for Reproductive Rights and co-lead counsel in the upcoming Supreme Court case.
In 1992, there were eight facilities providing abortions in the state, but by 2014, only two remained, according to the American Civil Liberites Union.
Schneller told Capital News Service that abortion restrictions in Mississippi have been increasing since the 1990s, putting more of a burden on patients and providers.
“In addition to there being only one clinic, patients have to make two in-person trips, separated by at least 24 hours, (and) receive state-mandated counseling,” she said. “All of the clinic’s providers fly in from out of state, which really restricts the number of days the clinic can make abortion services available.”
The state has also placed restrictions on common practices for abortion care, including the use of telemedicine visits to assist with the taking of prescribed drugs to produce an abortion.
“And all of these restrictions are falling on folks for whom it’s already really challenging to make ends meet and, in particular, for communities of color, who are disproportionately poor,” Schneller said. “So all of those things combine and make it incredibly difficult for someone to even reach this one clinic in the state.”
Mississippi is also unique in that it is the only state requiring abortion providers to also be OB-GYNs, the ACLU reported.
Anti-abortion advocates see the Mississippi case as their best chance to reverse almost five decades of what they view as government-supported murder.
“I am committed to making Mississippi the safest place in America for an unborn child, and this bill will help us achieve this goal,” tweeted former Mississippi Republican Gov. Phil Bryant, who signed the Gestational Age Act into law in 2018.
A range of groups submitted briefs in support of Jackson Women’s Health and the protection of abortion rights in Mississippi and across the nation.
Among those was one from a group of medical associations that included the American College of Obstetricians and Gynecologists and the American Medical Association.
The medical groups argued that abortion “is a safe, common, and essential component of healthcare” and that “scientific evidence conclusively demonstrates that a fetus is not viable at fifteen weeks.”
In 1996, the precedent set in Roe v. Wade was challenged in the Supreme Court case Planned Parenthood of Southeastern Pennsylvania v. Casey. The court upheld the right to abortion access in that case, but imposed what is known as the “undue burden standard,” by which a state could not impose an “undue burden” on a pregnant person seeking an abortion.
Furthermore, the case determined viability as the point when a state’s interest in protecting the life of a fetus can override a person’s right to an abortion.
Medical groups supporting Jackson Women’s Health explained that once a fetus becomes viable, “medical support alone could sustain it, and its continued existence is no longer entirely dependent on the pregnant patient.”
But the groups assert that at 15 weeks, a fetus is still two months before viability and the focus on “fetal pain” in the Mississippi law is a distraction and scientifically unfounded.
“There is no credible scientific evidence of fetal pain perception pre-viability, and certainly none at fifteen weeks,” the brief reads. “Every major medical organization that has examined the issue of fetal pain and peer-reviewed studies on the matter have consistently reached the conclusion that pre-viability abortion does not result in fetal pain perception.”
Multiple groups also submitted briefs supporting the Mississippi law.
The Roman Catholic Dioceses of Biloxi and Jackson in Mississippi used the claim of “fetal pain” in defense of the law.
“Should Lady Justice turn a blind eye to the cry of the unborn child, sucking its thumb, hidden in the sacred dark refuge of his or her mother’s womb, only to have that womb become a tomb?” the dioceses wrote. “Justice should not abandon the unborn child.”
Two dozen states, including Texas, Alabama and Florida, also submitted a joint brief in support of the Mississippi law.
“The case against abortion as a constitutional right is not difficult to make,” the 24 states argued. “It is simply not present in the Constitution or protected throughout the Nation’s history. Those who seek to justify the continued preservation of the right have the greater hurdle – and one that must ultimately prove insurmountable.”
Members of Congress on both sides of the aisle submitted briefs as well: 236 members joined a brief in support of the Mississippi clinic, while 228 wrote a brief advocating for the new state law.
Separately, Sens. Josh Hawley, R-Missouri, Mike Lee, R-Utah, and Ted Cruz, R-Texas, wrote a joint brief in favor of upholding the law.
Reproductive rights advocates say if the law is upheld, the impact would be felt nationwide.
“You’re looking at a future where around 21 states will no longer have abortion access,” Laurie Bertram Roberts, co-founder of the Mississippi Reproductive Freedom Fund, told CNS. “Obviously, people can get pills off the internet, and they will continue to do so. But that’s not gonna solve the problem of people not being able to get to the clinic. It’s not solving the problem of people not being able to get to clinics now.”
The answer, Bertram Roberts says, lies in pushing lawmakers to affirm and protect abortion access.
“We need to be asking our lawmakers what they (are) going to be doing to make sure that happens,” Bertram Roberts said. “Because for a very long time, it’s been an optional thing for one side of the political spectrum and not the other, and that’s why we’re here.”