I don’t know who needs to hear this besides Mississippi’s attorney general, but stop filing Supreme Court petitions.
I mean it.
Stop it this instant.
On Monday, Attorney General Lynn Fitch filed a petition with the U.S. Supreme Court, asking it to review a case involving a Mississippi law that bans abortion at 15 weeks’ gestation. The Supreme Court has ruled time and again that states cannot outright ban abortion before viability. It is undisputed that no fetus is viable before 15 weeks. As such, Mississippi’s 15-week ban is unconstitutional. That should be the end of the discussion.
When Jackson Women’s Health Organization filed a lawsuit in 2018 challenging the 15-week ban, the district court blocked the law almost immediately and told Mississippi to have a seat. And after listening to attorneys for Mississippi try to argue that the abortion ban wasn’t really a ban (before being forced to admit that, yes, the ban is a ban because of course it is) the Fifth Circuit also told Mississippi to have a seat.
Do you know how wrong you have to be for the Fifth Circuit—which is lousy with judges just itching to overturn Roe v. Wade—to tell you to have a seat? I don’t know how to quantify that amount of wrongness, but let’s go with “hella.” You have to be hella wrong.
But nevertheless, Mississippi persisted. They filed a 200-page petition with the Supreme Court this week asking the Court to review a wildly unconstitutional law.
So what the hell, Mississippi? Why are you doing this to me?
Because at this point, it kind of feels like a personal attack.
We are in that part of the Supreme Court term that makes me sweaty, to use a phrase coined by my esteemed colleague Jessica Mason Pieklo, who routinely perspires when shit is about to go down. This coming Monday, the Supreme Court could drop its ruling in June Medical Services v. Russo and do two things, each of which would be terrible. (June Medical Services is the case challenging Act 620, a Louisiana law that requires abortion providers to maintain admitting privileges at a local hospital.)
First, the Court could uphold Louisiana’s admitting privileges law, thus blowing a hole through a case called Whole Woman’s Health v. Hellerstedt. That case involved a Texas TRAP law (targeted regulation of abortion providers) that is exactly the same as Louisiana’s. In Whole Woman’s Health, the Supreme Court told the state of Texas: “If you’re going to come into court claiming that you enacted a TRAP law for health and safety reasons, you need to show your work. You can’t gloat in public about how your state is a haven for the unborn or about how every time another clinic is shut down, you get an acute case of jazz hands, and then come in here feigning pious concern for the health and safety of pregnant people in your state. Cut that shit out.” (Obviously the Court didn’t actually say that, but that’s definitely the Whole Woman’s Health decision’s vibe.)
Second, during this Supreme Court Sweaty Season, the Court could upend the way that advocates have been litigating abortion rights cases for nearly 45 years. The Court may side with Louisiana and say that abortion providers can no longer sue on behalf of their clients due to a “conflict of interest.” (Those quotation marks should be read as sarcastically as possible.)
Never mind that for the five years it spent litigating the case, Louisiana never complained about June Medical Services suing on behalf of its clients. In fact, Louisiana conceded time and again that June Medical Services could absolutely sue on behalf of its clients.
But now the Supreme Court could ignore all of that and decide that abortion providers can no longer sue on behalf of their patients (even though they’ve been doing it for almost 45 years). That would would make challenging abortion restrictions, like Mississippi’s bullshit 15-week ban, more difficult.
Because lawyers would have to find individual pregnant people willing to sue for rights that may never benefit them. Imagine being pregnant and needing an abortion, having a state tell you that you can’t get one, and then having to file a lawsuit demanding the right to an abortion that you will never be able to get because—try as you might—you’re not going to be able to remain pregnant for three straight years. (Litigation takes a long time.)
June Medical Services is a big case with big implications, and a lot of other cases are in a holding pattern right now awaiting that Supreme Court ruling. Everyone else is basically holding their breath, but here comes Mississippi barreling through the room tooting a vuvuzela.
Mississippi’s attorney general is asking the Supreme Court to blow up its own abortion jurisprudence by deciding that, actually, pre-viability abortion bans are just fine. (TOOT! TOOT!) She’s also asking the Court whether Jackson Women’s Health Organization has too much of a conflict of interest with their patients to challenge the 15-week ban on their patients’ behalf. (ROOT-A-TOOT-TOOT!)
Hey, Mississippi? That last question is literally before the Court right now. We’re going to get a ruling some time between now and the end of this month—probably on Monday or Thursday of next week. Literally everyone in the abortion rights world is waiting for an answer to that question. So can you put down the vuvuzela and chill the fuck out? We get it, Mississippi. You are dying to gut abortion access.
You don’t have to be such a try-hard about it.