by Cassidy Morrison, Healthcare Reporter | | July 22, 2021 04:50 PM
Mississippi Attorney General Lynn Fitch asked the Supreme Court to overturn the landmark 1973 decision Roe v. Wade that legalized abortion nationwide, calling the ruling "egregiously wrong."
“Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion," Fitch wrote in a brief filed to the court on Thursday.
The request pertains to Dobbs v. Jackson Women’s Health Organization involving a 2018 Mississippi law that would ban abortions after 15 weeks of pregnancy, with narrow exceptions for medical emergencies. The law was blocked in lower courts before it could take effect, and the Supreme Court announced in May it would take the case to decide “whether all pre-viability prohibitions on elective abortions are unconstitutional."
Court precedent, first established with the 1973 Roe v. Wade decision and reaffirmed in the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision, is that there is a right to legal abortion before the fetus reaches the gestational age at which it's likely to survive outside the womb.
The conservative-majority Supreme Court has the power to throw out that law in its next term.
“There are those who would like to believe that Roe v. Wade settled the issue of abortion once and for all. But all it did was establish a special-rules regime for abortion jurisprudence that has left these cases out of step with ... neutral principles of law applied by the Court,” Fitch said. "Artificial guideposts have stunted important public debate on how we, as a society, care for the dignity of women and their children. It is time for the Court to set this right and return this political debate to the political branches of government.”
Ten Republican-led states — including Mississippi, Arkansas, Louisiana, Idaho, and Kentucky — have "trigger" laws on the books, which would instantly ban abortions if Roe is overturned. The majority-conservative court has electrified anti-abortion advocates who believe they are closer than ever to throwing the law out.
"Attorney General Fitch’s masterful brief makes clear that the Supreme Court’s abortion jurisprudence is hopelessly unworkable, ungrounded in history or facts, and has tied the hands of pro-life Americans and their elected representatives for decades. It is long overdue to let this debate move forward democratically," said Marjorie Dannenfelser, president of the anti-abortion advocacy group Susan B. Anthony List.
Still, the mostly conservative court showed last summer it is willing to defer to precedent in similar cases. Justice Stephen Breyer, a Clinton appointee, led the court opinion in last year's June v. Russo case in which the court struck down Louisiana abortion restrictions based on recent precedent.
Chief Justice John Roberts, appointed by former President George W. Bush, issued a surprise opinion concurring with the majority.
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