The stakes are high for abortion rights in the upcoming U.S. Supreme Court case challenging a Mississippi abortion ban. In its brief filed today in Dobbs v. Jackson Women’s Health Organization, the Center for Reproductive Rights and its co-counsel make clear the consequences of banning abortion if the Court were to overrule almost 50 years of precedent and uphold the Mississippi ban.
Earlier this month, in a separate case, the Supreme Court denied the Center’s request to block a Texas ban on abortion after approximately six weeks of pregnancy. Since taking effect September 1, Texans’ need for abortion has not diminished, but the provision of almost all abortion care has ended in the state. The Texas law incentivizes private individuals to sue abortion providers and anyone who assists someone in obtaining an abortion after the time limit, adding to the fear and chaos surrounding the new ban.
Desperate for care, many Texans are being forced to drive hundreds of miles to other states to obtain abortions, while others may attempt to end their own pregnancies despite potential legal risk. For some, the barriers will simply be too high, and they will be compelled to accept the risks of continued pregnancy and childbirth as they are forced carry their pregnancies to term. As a result of systemic barriers, these harms will fall hardest on young people, people of color, and people who are poor or living with low incomes.
“Right now, Texas has managed to ban abortion even as Roe stands, and other states have said they will follow in its footsteps,” said Nancy Northup, president and CEO of the Center in a statement issued today. “While Texas is circumventing Roe and the Constitution, Mississippi is openly asking the Court to overturn Roe. If the Court grants Mississippi’s request to overturn Roe, large swaths of the South and Midwest—where abortion is already hard to access—will eliminate abortion completely.”
Supreme Court to Review Mississippi’s Request to Overturn Roe
The Mississippi ban being challenged in Jackson Women’s Health—expected to be argued later this year—prohibits abortion after 15 weeks of pregnancy. The ban was enacted in direct violation of the core holding of Roe v. Wade (1973) that, prior to viability, every person has the right to decide whether to continue their pregnancy. The Mississippi ban was struck down by both the district court and the Fifth Circuit Court of Appeals before the Supreme Court agreed to hear the state’s request to review the law—marking the first time the Court agreed to review the constitutionality of a pre-viability abortion ban.
In response to the question before the Court in this case, “whether all pre-viability prohibitions on elective abortion are unconstitutional,” in its brief today, the Center answers “yes.”
Last month, Mississippi’s brief in Jackson Women’s Health explicitly and repeatedly asked the Court to overrule Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) and rule that there is no right to abortion protected by the U.S. Constitution. In response, the Center points out that every one of the state’s arguments has been considered and rejected by the Court before: “In Casey, this Court carefully considered every argument Mississippi makes here for overruling Roe. After doing so, the Court reaffirmed the ‘most central principle’ of its abortion jurisprudence: that states cannot prohibit abortion until viability.” Because pregnancy so intensely impacts a person’s bodily integrity, before viability, the Court has repeatedly held, the decision must be for the pregnant person—and not the State—to make.
In the 1992 Casey case, the Court also outlined the importance of the right to abortion to women’s participation in the social and economic life of the nation and pointed out that an entire generation of Americans had relied on the right to abortion to shape their lives and futures.
Today, two generations—spanning almost a half century—have relied on this right to make basic decisions about their bodies, lives, and futures. The Center states that Mississippi disregards the “vital liberty and equality interests of those who would be affected by the radical change in the law it requests—the nearly one in four women who decide to end a pregnancy at some point during their lives.”
Center Warns of Consequences of Banning Abortion
The Center warns in its brief that “half the states in the Nation are poised to ban abortion” should the Court uphold Mississippi’s ban. Serious harm and significant chaos would ensue.
The Court has repeatedly reaffirmed precedent that states cannot ban abortion before viability, the Center’s brief states, and “Mississippi is forced into its extreme position because it has nothing serious to offer in place of the viability line.” None of the State’s supposed alternatives to the stable and principled viability line could “be administered against the cascade of abortion bans that await.” Nor would any of Mississippi’s arguments to replace Roe and Casey provide any stable right to abortion.
They are not meant to. Mississippi has already enacted a six-week abortion ban, and is one of at least a dozen states that has a law in place that are intended to ban abortion if Roe is overruled. Even further, Mississippi officials—and their counterparts in many states—have announced their intent to replicate Texas’s law and its vigilante enforcement scheme.
The Center continues, “As abortion bans are enforced—or the threat of enforcement looms—large swaths of the South and Midwest would likely be without access to legal abortion. Some people with the means to travel may be able to access legal abortion—but only after crossing multiple state lines.” Many others—especially young people and others without such means, many of whom are women of color—will not. They will, instead, attempt to “end their own pregnancies outside the medical system, which could expose them and anyone who helps them to criminal investigation and prosecution. Some would attempt abortion by unsafe or ineffective methods. . . . For many, the barriers will simply be too high, and they will be forced to endure the substantial risks of continued pregnancy and childbirth.”
“There are no half-measures here.”
In its conclusion, the Center states, “There are no half-measures here.” The State’s “alternatives” would upend the balance struck in Casey and ultimately extinguish ‘the woman’s liberty to determine whether to carry her pregnancy to full term.’ Upholding Mississippi’s ban “would lead to the same thing: attempts by half of the states in the Nation to forbid abortion entirely, and a judiciary left without tools to manage the resulting litigation. The only way to avoid that outcome is to recognize, as the Court reaffirmed thirty years ago, that ‘a State’s interest in the protection of [fetal] life falls short of justifying any plenary override of [the] individual liberty claims’ at stake here. Until viability, a state may regulate, but not ban, abortion.”
- Response brief filed 09.13.21 in Dobbs v. Jackson Women’s Health Organization
- Case overview: Dobbs v. Jackson Women’s Health Organization
- Full statement by Nancy Northup, president and CEO of the Center for Reproductive Rights, 09.13.21