How a Mississippi lawsuit could potentially be the deathblow to Roe v. Wade
JACKSON, Miss. (WLBT) - A lawsuit originating in Mississippi that has found its way to the United State Supreme Court could possibly overturn Roe v. Wade, the landmark decision giving women the right to an abortion.
The lawsuit found its origin in 2018, when then-governor Phil Bryant signed the Gestational Age Act, which would have prohibited an abortion in Mississippi after 15 weeks except in the cases of a medical emergency or severe fetal abnormality.
While signing the act, Bryant commented, “We’re probably going to be sued here in about half-an-hour.” He was right.
A lawsuit was immediately filed and the Gestational Age Act was blocked by U.S. District Judge Carlton Reeves, a President Barack Obama appointee, who stated that the law “unequivocally” violated a women’s constitutional rights.
This due to the Supreme Court’s ruling in Planned Parenthood v. Casey, which declared it a constitutional right for a woman to have an abortion up to the point of viability. Because most doctors agree that a baby is viable, or able to live on its own, around 24 weeks, the Gestational Age Act was deemed unconstitutional.
The act was then taken to the Fifth Circuit Court of Appeals with Judge Reeves’ ruling being unanimously upheld. “States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right but they may not ban abortions,” the court wrote. “The law at issue is a ban.”
Not yet deterred, the state of Mississippi took the lawsuit to the United States Supreme Court. Mississippi has asked the Supreme Court to hear other abortion cases, but every other time the Court has declined. But this time, however, they said yes.
And now Dobbs v. Jackson Women’s Health Organization is a pending U.S. Supreme Court case that will be heard and decided in the summer of 2022.
(Yes, the defendant in the lawsuit is Dr. Thomas Dobbs, Mississippi’s State Health Officer. No, he has no personal involvement in the case. He is named as the defendant given the fact that he is the highest state official charged with enforcing the currently unconstitutional law.)
As Mississippi College law professor Matt Steffey said, the fact that the Supreme Court is even willing to hear the case is “momentous.” With every Supreme Court case, the Court takes up an issue or issues. In this case there is a single issue: Whether all pre-viability prohibitions on elective abortions are unconstitutional.
This, Steffey said, is the heart of Roe v. Wade.
“The reason [the Supreme Court] is hearing this case is because at least four Justices of the Supreme Court are willing to consider changing the law on abortion,” Steffey explained.
According to Steffey, if the Supreme Court wanted the laws on abortion to continue as is, there would be no reason for them to pick up this case. “[...] I don’t think we’d be here talking about it if there wasn’t an expectation that the law on abortion is going to change.”
It generally takes five Justices agreeing on a case for a rule of law to emerge. So just because four Justices want to hear Dobbs v. Jackson Women’s Health Organization does not necessarily mean that change is inevitable.
But if the Supreme Court were to rule in favor of Dobbs, Steffey said this could mean a multitude of things.
“It could mean that Roe v. Wade is utterly overruled and states can do whatever they want on the subject of abortion...” Steffey said. “[...] Or Roe could die slowly over a longer period of time by a death of a thousand cuts, which is what many commentators predict.”
If Roe v. Wade were overturned, the best-case scenario for some or worst-case scenario for others, given their perspective, would mean that each individual state in the union would be given the freedom to do what what they wanted with abortion rights. This could mean outlawing it completely or not changing anything at all.
But this, as Steffey pointed out, could open a Pandora’s box for state legislatures, and potentially be the cause of many headaches, especially for those politicians in red states.
Would abortion be outlawed even in the cases of rape or incest? What if the mother’s life was in danger? What about in cases of fetal abnormalities? Would this change any rules around the Plan B pill?
At some point, Steffey expounded, “It’s no longer just pro-life and pro-choice. It’s what does being pro-choice really mean? Right now it means being against Roe v. Wade. In Mississippi it means closing one abortion clinic... This may be a momentous turn in the national conversation about reproducetive rights. But it’s not the end of it.”
As Steffey stated, the overturning of Roe is “a legitimate possibility.” He also finds it somewhat ironic that the possible new abortion laws would be decided by a “male-dominated legislatures in the south-east and mid-west.”
“If Roe’s overturned,” he said, “it’s not gonna be women and their doctors making that decision. It will be the Mississippi legislature.”
He then made a final point, saying that the issue of abortion, while being philosophical, moral and political, is also an economic one.
“If you have the kind of job in life where you can afford a plane ticket, then you can fly to a jurisdiction that permits abortion...” Steffey said. “If, however, you are poor and disproportionately if you are a poor woman of color, where a bus ticket is a financial hardship or taking a day off of work is a financial hardship, this is who this law affects. This law would affect not women of means, but poor woman and, disproportionally, women of color.”
Copyright 2021 WLBT. All rights reserved.