The state of Mississippi begins its letter in Dobbs v. Jackson Women’s Health Organization with a bold claim: the case for overriding Roe v. calf (1973) and Planned Parenthood v. Casey (1992), two fundamental decisions of the Supreme Court that protect the right to abortion, are “overwhelming”.
Dobbs, which the Court will hear this fall, refers to a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy. It is the first major abortion case to receive a full report and oral argument since the confirmation from Judge Amy Coney Barrett gave the Court a conservative 6-3 majority. And those who oppose abortion have every News Block to be optimistic that the new majority of the Court will use Dobbs to undo the right to abortion.
That probably explains why the Mississippi brief, which maintains that “the Constitution does not protect the right to abortion or limit the authority of states to restrict it,” breaks with the tactics that anti-abortion lawyers have used to defend restrictions on freedom. reproductive. Instead of explicitly asking the Court to annul RoeIn the past, these attorneys have attempted to undermine abortion rights until it is functionally impossible to obtain an abortion in many states.
Take for example, The integral health of women v. Hellerstedt, the 2016 court decision nullifying two provisions of a Texas law that imposed costly architectural requirements on abortion clinics, while requiring abortion providers to obtain a hard-to-acquire credential. The goal of this law was not to explicitly prohibit abortion, it was to secure the Supreme Court’s permission to indirectly prohibit abortion, by placing so many legal burdens on abortion providers that they ultimately cannot comply with the law.
The law in question in Dobbs nor does it explicitly prohibit all abortions. But Mississippi’s litigation strategy hopes to make such a ban permissible. If the court annuls Roe other Casey, that’s the ball game. State lawmakers will be free to ban abortion entirely and without having to disguise their ban as an attempt to regulate the width of the aisles in abortion clinics.
Anti-abortion lawyers, in other words, are finally being honest about their end goal. Instead of asking the Court to put an arcane and meaningless limit to the Roe other CaseyWhile simultaneously claiming that these two cases are still good law, Mississippi has just asked the Court to remove the right to abortion entirely.
Justice Anthony Kennedy turned the abortion litigation into a dishonest game
Justice Anthony Kennedy, who retired from the Court in 2018, held the fundamental vote in the Supreme Court in abortion cases for many years.
Kennedy is quite conservative and tended to be skeptical of abortion rights. As David Cohen, a law professor at Drexel University noted in 2013, Kennedy “has voted in favor of remove just one of the 21 abortion restrictions who have gone to the Supreme Court since he became a magistrate. “
However, while Kennedy was open to many laws that made it difficult to obtain an abortion, he refused to override Roe total. Kennedy was one of the three co-authors of the Court’s decision in Casey, which weakened Roe, while also withholding “Roeessential possession “ affirming “the right of women to opt for an abortion before [fetal] viability and obtain it without undue interference from the State “.
Kennedy, in other words, would not have maintained an explicit ban on abortions. But he was willing to abide by many laws that tax the right to abortion. So, abortion opponents spent the years when Kennedy maintained the balance of power in court by drafting increasingly aggressive restrictions on abortion that were intended to be more than just a total ban.
The culmination of this strategy was the two provisions of Texas law struck down in Comprehensive women’s health. That law required doctors who perform abortions to obtain admitting privileges at a nearby hospital, and it also required abortion clinics to abide by the same rules that apply to “ambulatory surgical centers,” facilities that are equipped to perform medical procedures. and surgical that are far more risky and complicated than an abortion.
Abortion rights advocates often scoff at these types of laws as “restrictions targeting abortion providers,” or Laws of “cheat”Because they pose as regulations intended to make abortion safer, when their real purpose is simply to increase the cost of operating an abortion clinic and put many clinics out of business.
As the Court explained in Comprehensive women’s health, the burdens imposed by Texas law did little, if anything, to actually improve health outcomes. One of the main reasons abortion providers find it difficult to obtain admission privileges in hospitals, for example, is that hospitals often require physicians to admit a certain number of patients to maintain those privileges. But abortions are so safe that they rarely result in complications that can lead to hospitalization.
As Judge Stephen Breyer wrote in Comprehensive women’s health, a clinic in Texas performed more than 17,000 abortions over a decade, and “not a single one of those patients had to be transported to a hospital for emergency treatment, let alone admitted to the hospital.”
Similarly, Texas law required all abortion clinics to have expensive surgical facilities. But many of the abortion clinics in Texas don’t even perform surgery; They exclusively offer medical abortions where the abortion is induced by pills.
It should be obvious why, if the Supreme Court had upheld the law in question in Comprehensive women’s health, that could have been the death sentence for abortion rights. If states can enact regulations whose sole purpose is to increase the cost of performing abortions, they could eventually put all abortion clinics out of business. Perhaps Texas could have required that all abortion clinics be built from solid gold.
And yet, even in a world of 24-karat surgical centers, the Supreme Court could have held that Roe other Casey it is still a good law. States would still be prohibited from drafting a law that explicitly states that “no one can perform an abortion.” But those states would still be free to ban abortion as long as they were dishonest enough about what they were doing.
It should also be noted that although Comprehensive women’s health was one of the most followed cases involving an attempt to restrict abortions by deceptive means, it was not a unique case. Opponents of abortion, both inside and outside the Court, have proposed a series of limits on abortion rights, ranging from limiting who can sue to challenge an abortion restriction to requiring that every person who wants an abortion submit their own demand to be able to obtain one, which would nominally leave Roe other Casey instead while potentially rendering them unenforceable.
However, with Kennedy missing and Republican candidates controlling a vast majority of court seats, it is far from clear that opponents of abortion still need to engage in such subterfuge.
The Supreme Court could still decide whether Roe in a dishonest way
Although Mississippi attorneys are betting they have five votes to explicitly override Roe other CaseyThe court may resort to the strategy advanced by abortion opponents in cases such as Comprehensive women’s health. Perhaps some members of the Republican Party-appointed majority of the Court will fear that a decision will be explicitly overturned Roe will inspire more Democrats to vote in future elections. Or perhaps some members of the Court want to maintain the illusion of continuity within the law.
I don’t know what the Tribunal will do in Dobbs and anyone else. But it is important to note that even if the Court does not accept Mississippi’s invitation to openly and honestly abolish the right to abortion, that does not mean that abortion rights are secure, or even that any vestige of them will continue to exist. exists.
In fact, while Mississippi attorneys dedicate most of your letter to your argument that Roe should be annulled, they dedicate a few pages at the end to create an alternative argument: that the Court should “reject any norm that prohibits a State from prohibiting elective abortions before viability.”
Since then Roe, the Court has held that the state may impose stricter restrictions on abortions in later stages of pregnancy than in the early stages of fetal development. Roe divided the pregnancy into trimesters, which allows a greater regulation of abortion in the last two thirds of pregnancy. Casey it abandoned this framework to focus on “feasibility”, giving the government broader authority over abortion once the fetus can survive outside the womb.
If the Court allows states to impose the same type of restrictions on pre-viability abortions that those states can currently impose on post-feasibility abortions, that would seriously hamper abortion rights and allow states to ban most abortions, even if the Court does not explicitly do so. cancel Roe or Casey.
The point, in other words, is that abortion rights are still in grave jeopardy, even if the court intends to uphold Roe or Casey live.