Abortion Rights 2021 thread

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.

SCOTUS FOCUS

We read all the amicus briefs in Dobbs so you don’t have to

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– the point at around 24 weeks of pregnancy when a fetus can survive outside the womb – is illogical or based on outdated scientific assumptions.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.

Legislative authority

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 .”

Maternal health

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.

Medical ethics

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.

Fetal personhood

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.

based upon thread title alone, throwing this one on mute. Good luck with whatever this is!

WASHINGTON (AP) — Both sides are telling the Supreme Court there’s no middle ground in Wednesday’s showdown over abortion. The justices can either reaffirm the constitutional right to an abortion or wipe it away altogether.

The judges are scheduled to begin hearing oral arguments at 10 a.m. ET. Listen in the player above.

For f*ck’s sake, rename this discussion.

Fine. You guys need to toughen up.

As an FYI 15 weeks is SUPER early into a preganancy. Most women discover they are pregnant at about 5-7 weeks. So, that basically gives you a month to schedule and have an abortion in Mississippi, depending on how obvious your pregnancy symptoms are.

It is super restrictive, and was put into place to basically outlaw abortions without actually doing so explicitly.

What was it called originally? As of 8:20 am Pacific on December 1 2021 it seems pretty straightforward.

I’m super pro-choice, but 15 weeks is plenty of time for women to know they’re pregnant and, in any normal state with good access to real health care, get an abortion if she desires. The problem with this case isn’t that it would restrict abortions that much (96% of abortions occur before 16 weeks) it’s that it sets legal precedent for restricting abortion that has nothing to do with fetal viability and opens the door to further challenges.

There was a reference to a dark lord, and a screenshot of an epic battle.

Huh, I think that I was thinking of a law that is not the one being challenged by the supreme court that was 12 weeks.

The interesting thing is the justices are actually voicing immediate concern that this would so taint the court it could forever damage its status if they were to overturn without the consent of the majority because of Stare Decisis. Most of the arguments so far seem to be about Stare Decisis. Sotomayor made the point at the very start that the only reason this law was before the SC was because the composition of the court changed.

Alternatively, we could remember Francis, our patron saint of lightening up. :)

Cheers for the name change!

There’s a Texas law that prohibits abortion once a fetal heartbeat is detected, at about 6 weeks, and allows vigilantes to sue and recover damages and legal fees. The SC declined to hear an injunction for emergency relief for the bill, but it will almost certainly be heard by the Court at some point soon.

I listened to most of the oral arguments and did not leave it with much hope. It seems clear that Kavanaugh and Alito and Thomas would reverse Roe and Casey as wrongly decided in the first place. And my impression was that Roberts was trying to feel for a bargain, whether there wasn’t some limit between viability and never where abortion rights could be protected, some narrower window. Barrett is probably a vote to reverse as well, though her questioning didn’t seem quite so pointed. And I didn’t get a read on Gorsuch at all, though I’d guess based on context that he’s not a fan of abortion rights.

Edit: Just recalled that one of Barrett’s ‘questions’ was the argument that women could just go ahead and carry babies to term and give them away after they’re born, and why wouldn’t that satisfy the reasonable expectations people had of their rights under existing precedent? So yes, she’d definitely shitcan the precedent.

I thought the abortion rights advocates did well in argument. One thing I think they could have hit more strongly was a question that came up multiple times, about when and why stare decisis could be ignored. Kavanaugh (I think it was him) rattled off a list of cases where long-standing precedent had been reversed: segregation, state prohibition against homosexual acts, same sex marriage, etc. His question was, basically, if we can throw out precedent in all these cases, why can’t we throw it out in this one? What’s the difference?

I don’t think there were bad answers to that, but I didn’t really hear the clear articulation of how those cases were different than this one. That is, that all those other cases involved precedents that had the effect of stripping people of their rights, where reversing precedent would have the effect of affirming and protecting those rights. Whereas with Casey and Roe, reversing would have the effect of stripping people of rights those decisions protected. Plessy v Ferguson was wrong from the day it was decided, because it had the effect of creating second class citizens with lesser rights. Reversing it had the effect of restoring rights to people who had been deprived of them.

Re: the fetal heartbeat thing, isn’t the actual phenomenon at around six weeks more of an electrochemical impulse sent out by part of the proto-brain, because there really isn’t much of any actual organ that could be called a heart at that point?

I guess it will be interesting to see how much of the decision will come from grappling with abortion in general disconnected from the details of the case.

Well, the state of Mississippi is trying to force that broader question. Their petition listed a bunch of questions for the Court to address, and the Court granted cert on only one of those questions: that of whether there were any restrictions a state could impose during the existing pre-viability period. But when it came to oral argument (and their brief), Mississippi basically ignored that question in favor of arguing that Casey and Roe were wrongly decided, should be struck down and the issue returned to the individual states. At least one justice, I didn’t hear who it was, brought up that very point: we granted cert on one question, but that’s not the question you’re arguing here, and not the one you briefed.

Or, separate from both of those, from the nature of Roe’s jurisprudence itself and the principle of stare decisis. Although the clarification Scott just gave about the limited single question which the court is hearing seems crucial. That’s good to know.

Well, maybe. As I said, at least 4 justices indicated a willingness to abandon Roe and Casey, and a fifth seemed open to abandoning viability as the point where the state can begin to restrict, in favor of Mississippi’s 15 weeks. Roberts actually said a ban at 15 weeks wasn’t a ban, it was just a restriction, whatever that means. 15 weeks is a disaster for abortion rights, especially in an environment where it’s frequently actually quite hard to access abortion services because of state pressure to suppress them.

Edit: Seems like Charles Pierce heard the same hearing I did.

In a colloquy with U.S. Solicitor General Elizabeth Prelogar, Roberts made the astonishing assertion that the Mississippi law was not “a prohibition” because women in Mississippi can still avail themselves of their current constitutional rights up until the 15th week of their gestation.

This is nonsense. The Mississippi law was specifically designed to prohibit abortion, and it was specifically designed by its authors to take advantage of the carefully engineered new majority on the Supreme Court…