Mississippi Abortion case begins today in the US Supreme Court.
What is the abortion law in question again?
The Mississippi law that will be reviewed by the court makes most abortions illegal after 15 weeks of pregnancy, about two months earlier than Roe and later decisions allow. Most experts estimate fetal viability to be about 24 weeks.
The law was enacted in 2018 by the Republican-dominated Mississippi Legislature but never went into effect because of an immediate legal challenge that led to a federal appellate court blocking its enforcement.
In Wednesday’s abortion case the justices have been asked to overrule decades of precedent. (Orhan Cam via Shutterstock)
More than 140 amicus briefs were filed in Dobbs v. Jackson Women’s Health Organization , the potentially momentous abortion case concerning a Mississippi law banning abortion after 15 weeks of pregnancy. The briefs come from professors, politicians, states, and interest groups from across the ideological spectrum. We reviewed them all, identified some of the most noteworthy and novel arguments, and summarized them in the guide below.
The case will be argued on Wednesday. For background on the case and a summary of the parties’ arguments, check out Amy Howe’s preview for SCOTUSblog.
Amicus briefs supporting Mississippi
The viability framework
Numerous groups attack the viability standard that the court adopted in Roe v. Wade and Planned Parenthood v. Casey . In general, they argue that drawing the line at viability – the point at around 24 weeks of pregnancy when a fetus can survive outside the womb – is illogical or based on outdated scientific assumptions.
For instance, the National Right to Life Committee and the Louisiana Right to Life Federation argue that the court should reject the “categorical viability line” and replace it with a new “roadmap” under which courts would consider all state interests when analyzing the constitutionality of prohibitions on pre-viability elective abortions. The protection of a fetus, “including against pain,” should be considered a relevant state interest “at all stages of pregnancy,” the groups write.
The U.S. Conference of Catholic Bishops and other religious organizations argue that “there is no constitutional basis for the viability rule,” and the Center for Religious Expression argues that viability is a poor gauge of the state’s interest in protecting fetal life.
Two conservative medical associations – the American College of Pediatricians and the Association of American Physicians & Surgeons – say the viability rule was based on faulty and incomplete medical information about prenatal development. “As what we know about the unborn child’s rapid development has changed, so too must this Court’s jurisprudence change,” the groups say. Three physicians and the Catholic Association Foundation write that advances in science have “painted an intimate portrait of the fetus and its humanity” and therefore the court’s viability framework is outdated. Trinity Legal Center and Catholic Medical Association, National Association of Catholic Nurses-USA, Idaho Chooses Life and Texas Alliance for Life make similar arguments.
Against stare decisis
Many amici focus on the principle of stare decisis – and urge the court not to follow it in this case. They say Roe and Casey are not worthy of the deference that the court typically affords to its prior decisions.
Three Republican senators – Josh Hawley of Missouri, Mike Lee of Utah, and Ted Cruz of Texas – write that a precedent can be unworkable due to “a history of confusion in the lower courts, an unstable pattern of Supreme Court decisions, and a persistent lack of judicially manageable standards.” Casey, they argue, “does not represent long-settled doctrine, rests on a foundation of flawed judicial reasoning, and boasts no traditional reliance interests.” Further, its undue burden test, they argue, is unworkable and inconsistent.
Twenty-four states similarly criticize the court’s “erroneous and constantly changing abortion precedent.” Americans United for Life argues that “ Roe and Casey contradict the stare decisis values of consistency, dependability, and predictability and are entitled to minimal stare decisis respect.” The Ethics and Public Policy Center makes a similar argument: Because the nation is so divided on abortion, the stare decisis factors cited in Casey do not apply. Three hundred twenty-one legislators from 35 states argue that all three prongs of the court’s stare decisis analysis weigh in favor of overturning Roe and Casey . State abortion restrictions, they say, should be subject only to rational-basis review.
Two hundred twenty-eight members of Congress say abortion policy should be determined in the democratically elected branches, not in the judiciary. “Mississippi’s case,” they write, “provides the Court a chance to release its vise grip on abortion politics.” They ask the court to side with the state to “affirm the constitutional authority of the federal and state governments to safeguard the lives and health of their citizens, born and not yet born.” The lawmakers argue that viability is an obsolete rule that “nullifies important state interests,” including maternal health, the integrity of the medical profession, and protecting fetuses from being aborted based on a prenatal diagnosis of Down syndrome.
Twelve governors write similarly that the court’s abortion precedent represents an “intrusion into the sovereign sphere of the States.” The Christian Legal Society and Robertson Center for Constitutional Law, Concerned Women for America, and Judicial Watch, Inc. make similar arguments, urging the court to overturn Roe and Casey on principles of state sovereignty and federalism.
Texas Right to Life describes Roe and Casey as “lawless and unconstitutional interventions into state abortion policy.” The brief was filed by Jonathan Mitchell, the anti-abortion lawyer who designed Texas’ six-week abortion banand argued before the court on Nov. 1 in support of that law.
The European Centre for Law and Justice points to the European Court of Human Rights, which has interpreted the European Convention of Human Rights to allow nation-states to create their own abortion access laws. The brief goes on to discuss abortion restrictions in various European countries.
Textualism and originalism
Professors Mary Ann Glendon and O. Carter Snead write that the court’s abortion precedent is “completely untethered” from the text, history, and tradition of the Constitution. “[N]either the framers of the Fourteenth Amendment, the States that ratified it, nor any member of the American public at that time with knowledge of its contents could have intended or understood that the Amendment precluded states from protecting unborn children or otherwise legally proscribing abortion,” Glendon and Snead write. “To the contrary, in the year it was ratified (1868), thirty of thirty-seven states explicitly criminalized abortion by statute.” Moreover, they write, “abortion was a longstanding common-law crime.”
The Thomas More Society argues that the right to reproductive freedom is not supported by history or legal tradition. It cites English common law in which abortion after “quickening” was considered a crime and 19th-century laws in American states that prohibited abortion. According to the group, the court wrongly concluded in Roe that the 19th-century statutes had been enacted to protect women from dangerous operations, rather than to protect fetuses. In one example, from 1881, “the New Jersey Supreme Court declared that its original 1849 abortion statute had been amended in 1872 ‘to protect the life of the child also, and inflict the same punishment, in case of its death, as if the mother should die.’”
Gender equality and women’s representation
A brief from the Susan B. Anthony List and 79 women serving as state legislators around the country highlights the increasing number of women who hold elective office in state governments. “Because of the substantial changes that even a minority of women bring to a legislative body, there is no longer a need — if there ever was — for this Court to assume that women cannot adequately protect their own interests through state political processes,” the brief argues. It notes that many state laws restricting abortion, including the Mississippi law, were sponsored by women. “Because women can now advance their own policy preferences in legislatures throughout the Nation, the Court can and should give greater deference to state legislators’ judgments about how to regulate abortion within their states’ borders.”
A brief from 240 women scholars and professionals and pro-life feminist organizations argues that Roe had no impact on women’s equality in society. “Even a cursory review of history reveals that the expansion of opportunities for women — as well as their increased participation in political, social, and economic spheres — predated Roe .”
The American Association of Pro-Life Obstetricians & Gynecologists argues that the Mississippi legislature was correct to conclude that abortions performed after 15 weeks pose “significant physical and psychological risks” to the patient. The Pennsylvania Pro-Life Federation also address physical risk, writing that “contrary to what some suggest, Roe was not a significant cause of reduced maternal mortality and morbidity from abortion.” The Prolife Center at the University of St. Thomas argues that the court should not allow for abortions sought due to a pregnant person’s mental or psychological health.
The Christian Medical & Dental Associations argue that performing abortions violates a physician’s duty to protect life and avoid doing harm. For that reason, the associations say, the Mississippi law serves the important purpose of upholding the ethics of the medical profession.
The Foundation to Abolish Abortion and other anti-abortion groups describe Roe as an “unconstitutional abuse of power” and urge the court not just to overturn that decision but also to hold that “a preborn human being, no matter how small, is a person under the Fourteenth Amendment” and is therefore entitled to equal protection. The March for Life Education and Defense Fund, originalism scholar Lee Strang, jurisprudence scholars John Finnis and Robert George, and the Billy Graham Evangelistic Association and other groups make similar arguments.
The Pacific Justice Institute suggests that abortion violates the 13th Amendment’s prohibition of slavery. “When aborting her fetus, a mother treats her child as slave property,” the institute contends.
I’m not a lawyer but you can go through the amicus summaries and decide which could inhabit a modification and which would require overturning Roe v Wade, and which would require rejecting abortion entirely.