The state of Mississippi begins its pleadings in Dobbs v Jackson Women’s Health Organization with a bold allegation: The Roe v. Wade Repeal (1973) and Planned Parenthood v Casey (1992) case, two landmark Supreme Court rulings to protect justice an abortion is “overwhelming”.
Dobbs, on trial this fall, concerns Mississippi law that bans almost all abortions after 15 weeks of gestation. It is the first major abortion case to receive full briefing and oral argument since Judge Amy Coney Barrett’s affirmation gave the court a 6-3 Conservative majority. And anti-abortionists have every reason to be optimistic that the new majority in court will use Dobbs to reverse the right to abortion.
That probably explains why Mississippi’s brief, arguing that “the Constitution does not protect the right to abortion or restrict the powers of states to restrict it,” breaks with the tactics used by anti-abortion lawyers to restrict reproductive health Defend freedom. In the past, rather than specifically asking the court to overturn Roe, these attorneys sought to abolish abortion law until it is virtually impossible to obtain an abortion in many states.
Take Whole Woman’s Health v. Hellerstedt, the 2016 court ruling denying two provisions of a Texas law that placed expensive architectural requirements on abortion clinics while requiring abortion providers to obtain hard-to-get ID. The goal of this law was not to explicitly ban abortions, but rather to get Supreme Court permission to indirectly ban abortions – by placing so many legal burdens on abortion providers that they eventually become unable to comply with the law.
Even the controversial law in Dobbs does not explicitly prohibit all abortions. But Mississippi’s litigation strategy is hoping to allow for such a ban. If the court overrides Roe and Casey, that’s the ball game. State lawmakers are free to ban abortion without having to disguise their ban as an attempt to regulate the width of hallways in abortion clinics.
In other words, anti-abortion lawyers are finally being honest about their ultimate goal. Rather than asking the court to put Roe and Casey on an obscure and nonsensical line while pretending that those two cases remained justified, Mississippi merely asked the court to abolish the right to abortion entirely.
Judge Anthony Kennedy turned an abortion battle into a dishonest game
Judge Anthony Kennedy, who retired from the court in 2018, held the decisive vote on the Supreme Court in abortion cases for many years.
Kennedy is quite conservative and has a tendency to be skeptical of abortion rights. As David Cohen, law professor at Drexel University noted in 2013, Kennedy “has only voted to lift only one of the 21 abortion restrictions that have come before the Supreme Court since he became a judge.”
But while Kennedy was open to many laws that make abortion difficult, he refused to override Roe entirely. Kennedy was one of three co-authors of the Casey ruling that weakened Roe while retaining “Roe’s essential property” and “affirming a woman’s right to choose an abortion beforehand.” [fetal] Viability and without undue interference from the state. “
Kennedy would not have upheld an explicit ban on abortion. But he was ready to obey many laws that encumber abortion law. Anti-abortion opponents spent the years in which Kennedy maintained the balance of power in court, increasingly aggressive abortion restrictions, which ostensibly were something other than a total ban.
The culmination of this strategy were the two provisions of Texas law that were put down in Whole Woman’s Health. This law required doctors who perform abortions to be granted admission privileges at a nearby hospital, and it also required abortion clinics to follow the same rules that apply to “outpatient surgical centers,” facilities that perform medical and surgical procedures far away are riskier and more complicated than an abortion.
Proponents of abortion law often ridicule these types of laws as “targeted restrictions on abortion providers” or “TRAP” laws because they disguise themselves as regulations designed to make abortion safer when their real purpose is simply to keep the cost of doing it an abortion clinic increasing and putting many clinics out of business.
As the court stated in Whole Woman’s Health, the burdens imposed by Texan law did little, if anything, to actually improve health outcomes. A major reason why abortion providers find it difficult to obtain admission privileges in hospitals, for example, is that hospitals often require doctors to actually admit a certain number of patients in order to maintain these privileges. But abortions are so safe that they rarely lead to complications that can lead to hospitalization.
As Judge Stephen Breyer wrote in Whole Woman’s Health, a clinic in Texas performed more than 17,000 abortions for over a decade, and “none of these patients had to be hospitalized, let alone hospitalized, for emergency treatment. ”
Similarly, Texas law required all abortion clinics to house expensive surgical facilities. But many abortion clinics in Texas don’t even perform surgery – they only offer drug-induced abortions, where the abortion is induced by pills.
It should be obvious why, if the Supreme Court had upheld the contentious law in Whole Woman’s Health, it could have been the death knell for abortion law. 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 would have required all abortion clinics to be built of solid gold.
And yet, even in a world of 24-karat surgery centers, the Supreme Court could have argued that Roe and Casey continued to be good law. States would still be forbidden from drafting a law that specifically states that “no one should have an abortion”. But these states would still be free to ban abortion as long as they were sufficiently dishonest about what they were up to.
It’s also worth noting that while Whole Woman’s Health was one of the most closely watched cases of attempts to restrict abortions through fraudulent means, it was hardly an isolated incident. Abortion opponents both inside and outside the court have proposed a number of restrictions on abortion law – from restricting who can sue an abortion restriction to requiring each and every person who wishes to have an abortion to file their own claim in order to obtain one – that would nominally leave Roe and Casey in place while they may not be enforceable.
However, with Kennedy gone and Republican appointments controlling the majority of the seats in the court, it is far from clear that anti-abortionists are still plagued with such deceptions.
The Supreme Court could still decide dishonestly to core Roe
Although Mississippi attorneys are betting they have five votes to specifically outvote Roe and Casey, the court may resort to anti-abortion strategy in cases like Whole Woman’s Health. Perhaps some members of the GOP-appointed majority in the court will fear that a decision that specifically overrides Roe will encourage more Democrats to vote in future elections. Or perhaps some members of the court wish to maintain the illusion of continuity within the law.
I don’t know what the Dobbs court is going to do, and neither does anyone else. But it’s important to note that even if the Mississippi Court does not honor its call to openly and honestly abolish the right to abortion, it does not mean that the right to abortion is safe – or that even a remnant of it persists.
While Mississippi attorneys devote most of their pleading to arguing that Roe should be repealed, they end up spending a few pages building a fallback argument – that the court should “reject any rule that would prohibit a state forbids voluntary abortions beforehand ”. Viability.”
Since Roe, the court has ruled that the state can restrict abortions more strictly later in pregnancy than they do at the beginning of the fetus’s development. Roe divided the pregnancy into trimesters, which allowed for better regulation of abortion in the last two-thirds of the pregnancy. Casey abandoned this framework to focus on “viability” and give the government broader authority over abortion once a fetus can survive outside the womb.
If the court allowed states to impose the same kind of restrictions that these states currently impose on abortion before viability, it would seriously undermine abortion rights and allow states to ban most abortions – even if the court does not expressly do so does Roe or Casey outvote.
In other words, the point is that even if the court pretends to keep Roe or Casey alive, the right to abortion is still in grave danger.