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A Pro-choice activist holds a sign in front of the Supreme Court in Washington, DC

Mississippi Abortion Law Heads to the Supreme Court in December

On one side, hundreds of religious and anti-abortion groups have officially gone on record, letting the nation’s highest Court know their stand – life begins at conception. 

On the other side, hundreds of women, including many high profile athletes, have also voiced their opinion – an abortion should stay a Constitutional right in the United States.

It has been 48 years since the Supreme Court’s landmark ruling in Roe v Wade, giving women the legal right to an abortion, and it has been 29 years since that decision was reaffirmed in Planned Parenthood v. Casey preventing states from banning abortion before viability, the point at which a fetus can survive outside the womb.

However, there is no doubt that America’s debate on whether or not a woman has a right to choose to have an abortion is far from settled.

The Supreme Court announced its plans to hear arguments for Mississippi’s Dobbs v. Jackson Women’s Health Organizations on December 1. The justices have been asked by lawmakers in Mississippi to overrule both Roe v Wade and Planned Parenthood v. Casey

The case is posed to test whether all state laws that ban pre-viability abortions are unconstitutional.

The History of Dobbs v. Jackson Women’s Health Organizations

On March 19, 2018, the Mississippi Legislature enacted the Gestational Age Act, also known as HB 1510, banning most abortions after 15 weeks of pregnancy, which is several weeks before viability, unless the abortion is done out of a medical emergency or “severe fetal abnormality.’’ If doctors perform abortions outside the parameters of the law, they will have their medical licenses suspended or revoked and may be subject to additional penalties. Further, the Gestational Age Act has no exception for rape or incest.

Immediately after the legislature’s action, the Jackson Women’s Health Organization, the only abortion clinic in Mississippi, filed a complaint in United States District Court for Mississippi’s Southern District.

After a district court blocked the law, the Fifth U.S. Circuit Court of Appeals affirmed the decision. In that court’s closing statement, in December 2019, the court said: “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 court held and concluded that “the law at issue is a ban.”

The Changing Landscape of Abortion Laws

In the last few years, several other conservative-leaning states have also sought to restrict abortions. Although, since 2019, bans on pre-viability abortion have been struck down in a dozen states, including Alabama, Arkansas, Georgia, Kentucky, Louisiana, Montana, Missouri, Ohio, Oklahoma, South Carolina, Utah and Tennessee. Recent events show the Supreme Court, with three new conservative justices sworn in under former President Trump, may be willing to go against long-established laws on the matter. 

Just days before the Court announced the December timeframe to hear oral arguments in Dobbs v. Jackson Women’s Health Organizations, the justices took an emergency action that pivoted away from its long-ago Roe v. Wade decision. On September 20, the Supreme Court allowed a six-week ban in Texas to go into effect, pending appeal, banning most abortions in the state.

In the Texas abortion restriction law known as SB8 or the Texas Heartbeat Act, the timing of abortions would be restricted to before fetal cardiac activity can be detected on an ultrasound, which is typically not before five to seven weeks of pregnancy. The challenge with this is that most women are unaware that they are pregnant at this time.

Friends of the Court

In the weeks leading up to the oral arguments, the justices are tasked to comb through countless documents, including more than 1,200 friends-of-the-court briefs filed by organizations and individuals on both sides of the issue. While many positions come from advocates of a particular side, including the National Right to Life Committee favoring the ban and the American Civil Liberties Union in opposition, many submissions were not as predictable.

According to the Wall Street Journal, on the conservative side is included a brief filed by John Finnis, who was an academic adviser to Justice Neil Gorsuch at Britain’s Oxford University, and Robert George of Princeton University. They cite historical and religious treatises to argue that the writers of the Constitution would have held similar views to Mississippi.

“The influential and widely circulated 1803 textbook ‘Medical Ethics’ explained that ‘to extinguish the first spark of life is a crime of the same nature, both against our maker and society, as to destroy an infant, a child, or a man,’” the professors wrote.

And when it comes to the other side, those who hope to see Roe v. Wade upheld, 500 athletes filed a friend-of-the-court brief. Included was the personal story of Crissy Perham, an Olympic gold medalist in swimming, who shared her struggle for the first time in a public forum.

 “When I was in college, I was on birth control, but I accidentally became pregnant,” wrote Crissy Perham, who won three swimming medals at the 1992 Barcelona Olympics.

Perham, then studying at the University of Arizona, wrote that ending her pregnancy allowed her “to take control of my future and refocus my priorities. I got better in school, I started training really hard, and that summer, I won my first national championship.”

The administration of President Joe Biden, a lifelong Catholic, also urged the U.S. Supreme Court to not overturn the landmark Roe ruling in a brief saying that Roe v. Wade and the 1992 Casey decision that affirmed it “recognize that forcing a woman to continue a pregnancy against her will is a profound intrusion on her autonomy, her bodily integrity, and her equal standing in society.” 

And in another brief filed by acting Solicitor General Brian H. Fletcher, Fletcher asked that the United States be granted time to argue its position during oral arguments.

Overruling Roe, Fletcher said, “would harm women (and their partners) who have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fall.”