WASHINGTON – Mississippi officials have urged the Supreme Court to overturn its landmark Roe v. Wade as an avalanche of written arguments began Thursday in one of the most watched abortion cases in years.
The High Court agreed in May to hear a challenge to Mississippi’s ban on most abortions after 15 weeks of pregnancy, giving its new Conservative majority of six members a chance to reverse the 1973 ruling that women have a constitutional right to abortion.
In their sharpest framing of the blockbuster conflict since the appeal was filed in the Supreme Court over a year ago, Mississippi noted that the text of the Constitution does not mention abortion and made arguing that membership in Roe was “dangerously corrosive to our constitutional system.”
A 7-2 majority concluded in Roe that women have the right to have an abortion in the first and second trimester, but states may impose restrictions in the second trimester. Years later, in Planned Parenthood v. Casey, the court allowed states to ban most abortions at viability, the point at which a fetus can survive outside the womb – approximately 24 weeks.
“Roe and Casey are totally wrong,” Mississippi lawyers told court on Thursday. “The conclusion that abortion is a constitutional right has no basis in text, structure, history or tradition.”
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It does, however, have a basis in recent precedent. Courts – especially the Supreme Court – are reluctant to overturn previous decisions because the principle of stare decisis, respect for previous decisions, gives stability and certainty to the law.
Since Chief Justice John Roberts joined the Court in 2005, judges have been particularly reluctant to question the rulings of their predecessors. Roberts has often argued the importance of precedent, even in the context of abortion, joining court liberals last year in repealing a Louisiana restriction on abortion clinics because it was so similar to a Texas law that the court had struck down years earlier.
The High Court, Roberts wrote last year, must “treat cases alike.”
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And it’s an argument that abortion rights groups are reinforcing again.
Nancy Northup, president of the Center for Reproductive Rights, said the state brief “reveals the extreme and regressive strategy, not only of this law, but of the avalanche of bans and restrictions on abortion that are adopted across the country “. She said the state was “astoundingly” asking the court to overturn five decades of precedent.
“If Roe falls, half of the states in the country are on the verge of banning abortion altogether,” said Northup, whose group represents Mississippi’s only remaining abortion clinic, Jackson Women’s Health Organization.
Lawyers for the clinic who have filed a lawsuit to block the law will submit their written argument in September. The court could hear oral argument this fall and will likely render a decision in the spring or summer of next year.
Mississippi approved its ban in 2018, making it one of 16 states with pre-viability bans blocked by federal courts, according to the Guttmacher Institute, a research group that supports abortion rights. The law makes no exceptions for rape or incest, but allows abortions for medical emergencies and “severe fetal malformation”.
Rather than overthrowing Roe directly, the judges could take a narrower approach and drop the threshold of viability, which Mississippi says is arbitrary and changes with medical technology. But that would raise the same question that has vexed the Supreme Court for decades: where to draw the line between a state’s interest in protecting a fetus and a woman’s right to reproductive autonomy.
Some states have tried to ban most abortions by the time a fetal heartbeat is detected, around 6 weeks. Others have sought to ban abortion at conception. Earlier this week, a federal judge temporarily blocked the application of an Arkansas law, due to go into effect on July 28, that would have banned nearly all abortions.
More than 92% of abortions in the United States in 2018 occurred within the first 13 weeks of pregnancy, according to the Centers for Disease Control and Prevention.
Despite predictions that a more conservative Supreme Court would move quickly to the right, the court’s term that ended this month offered a more nuanced picture. The results of major disputes over voting rights, immigration and religious freedom have often aligned with the conservative view, and have often done so more gradually than some had anticipated. This is in part because the six Conservatives on the tribunal did not always vote at the same pace.
Although Roberts is no longer the deciding vote, he nonetheless appeared to build coalitions this year between conservatives and liberals. Assuming Roberts lands mostly in Dobbs, experts said, he could attempt to replicate that approach by formulating an opinion that undermines Roe without directly overthrowing it.
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Judges spent months deciding whether to take the case, an unusually long time that suggested deep divisions on the nine-member bench.
A Mississippi federal district court overturned the state’s 2018 ban, and the New Orleans-based United States Court of Appeals for the 5th Circuit upheld the ruling in 2019, ruling that the The law was “fundamentally unconstitutional because it directly conflicts with” the previous Supreme Court. previous.
But Marjorie Dannenfelser, chair of the anti-abortion group Susan B. Anthony List, described the court’s abortion case law as “hopelessly unachievable” and “without basis in history or facts.”
This article originally appeared on USA TODAY: Abortion: Mississippi asks Supreme Court to overturn Roe v. Wade