Abortion Advocates Urge Supreme Court To Reaffirm Roe v. Wade

Mississippi clinic's plea comes amid growing uncertainty over the future of abortion access

Pro-life and pro-choice activists in 2018 / Getty Images
September 14, 2021

Abortion advocates on Monday urged the Supreme Court to reaffirm Roe v. Wade, warning that anything less would result in chaos and social upheaval.

The plea came in a legal filing from the Jackson Women's Health Organization, the sole abortion provider in Mississippi. The clinic is challenging the state's ban on abortions after 15 weeks, which the justices will consider later this year.

Monday's brief comes amid growing uncertainty over the future of abortion access. Texas succeeded in implementing a law that bans abortions once a fetal heartbeat is detected—as early as six weeks—after the justices declined on Sept. 2 to get involved for procedural reasons.

The providers argued the case was about the proper role of courts. They broadly accused lawyers for Mississippi of rehashing arguments the High Court has heard and rejected in earlier cases. And they emphasized that since Roe was decided, the courts have repeatedly guaranteed access to abortion and tied state regulatory authority to fetal viability. Honest application of those settled principles must lead the justices to strike down Mississippi's 15-week ban, they said.

"Unless the Court is to be perceived as representing nothing more than the preferences of its current membership, it is critical that judicial protection hold firm absent the most dramatic and unexpected changes in law or fact," the brief reads. "All the more so where, as here, the Court has already thoroughly reconsidered and reaffirmed the right at issue."

Mississippi in a July filing urged the justices to overturn Roe and its principal successor, Planned Parenthood v. Casey. Short of that, the state said the Court could uphold the 15-week ban without scuttling its abortion precedents. Under Roe and Casey, states can ban or heavily restrict abortion once an unborn child is viable outside the womb, but not before. Lawyers for the state said the Court could tie abortion rights to some other legal test that gives the states more latitude.

The clinic's brief insisted there is no alternative to the viability standard, which it defended at length. If a state can ban abortions before a fetus can survive outside the womb, it will wipe out "the urgent claims of the woman to retain the ultimate control over her destiny and her body." Viability has proven a relatively fixed point over time, occurring around 23 weeks of pregnancy, much as Casey predicted. Nor should concern for maternal safety matter, since childbirth is medically riskier than abortion, the brief contends.

Finally, the brief said the viability test is "precedent on top of precedent," in that it was announced in Roe and explicitly reaffirmed against a direct challenge in Casey. All told, the clinic framed abortion rights and the viability test as an all-or-nothing proposition.

"There are no half-measures here. Each of the state's purported 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," Monday's brief reads.

The providers also accused the state of pulling a bait-and-switch. Mississippi's petition asked whether a 15-week abortion ban could survive under Roe and Casey. Once the Court agreed to hear the case, an emboldened Mississippi went further and urged the justices to scrap Roe altogether. That sort of move isn't permissible under the Court's rules, the providers said.

Lower court judges have attacked Roe in recent days. A three-judge panel of the Sixth U.S. Circuit Court of Appeals on Thursday struck down a Tennessee law that bans abortions as early as six weeks and prohibits abortions based on an unborn child's race, sex, or Down Syndrome status.

In a partial dissent, Judge Amul Thapar said Roe and Casey rely on pliable reasoning that is difficult to straightforwardly apply. He noted the lower courts have divided over parental notification requirements, informed consent disclosures, and laws that ban abortions based on a fetus's identity characteristics.

"Rather than mend the nation's fractures, the Casey regime's lack of concrete guidance has generated decades of bitter litigation and widening circuit splits," he wrote.

"Roe and Casey are wrong as a matter of constitutional text, structure, and history," he said elsewhere.

A coalition of lawyers from the Center for Reproductive Rights and two white-shoe law firms, O'Melveny & Myers and Paul, Weiss, are representing the providers before the High Court.

Arguments in the case, No. 19-1392 Dobbs v. Jackson Women's Health Organization, have not yet been scheduled but are likely to take place in December.