UPDATE, 9:50 a.m. May 17: The Supreme Court has agreed to hear Dobbs v. Jackson Women’s Health.
I have a question.
Is Mississippi OK? Not the people in Mississippi. There are lots of good people in Mississippi. But I mean public officials in Mississippi. Like the governor. And the attorney general. And basically any attorney representing Mississippi in court.
Because not only have they ignored my plea to stop filing Supreme Court petitions, they actually upped the ante by filing a supplemental brief containing “legal” arguments (please read those quotation marks as sarcastically as possible), which supposedly explain why the state’s unconstitutional 15-week gestational ban is actually constitutional. In making its “legal” arguments, Mississippi blabbers on for seven blissfully short pages, managing to cram in a lot of bullshit about cases that have nothing to do with Mississippi’s case.
And frankly, it’s starting to make me lose my mind a bit.
Mississippi’s case, Jackson Women’s Health Organization v. Dobbs, is about a 15-week gestational ban, yet another flavor of pre-viability abortion ban anti-choice numpties like to cook up. Under current abortion law, pre-viability abortion bans are unconstitutional. The Supreme Court has ruled over and over again that states cannot outright ban abortion before viability.
Everyone agrees—Mississippi’s lawyers included—that no fetus is viable at 15 weeks. Mississippi’s law is therefore unconstitutional. Period. That’s why the district court struck it down. And that’s why even the extremely conservative Fifth Circuit Court of Appeals struck it down.
But Mississippi doesn’t have to convince the district court or the Fifth Circuit that its “legal” arguments are sound. Mississippi has to convince the Supreme Court, where a new justice was installed on the bench just yesterday to destroy access to health care, including abortion care. If Mississippi’s lawyers give newly minted Justice Amy Coney Barrett an abortion turd, she’ll find a way to polish it into an abortion stone.
So, what did attorneys for Mississippi do last week as Barrett’s nomination was barreling through the Senate? They filed a nonsense supplemental brief discussing how the federal courts have been ruling in recent cases involving TRAP laws (targeted regulations of abortion providers).
TRAP laws are laws that regulate only abortion providers. Mississippi’s abortion ban is not a TRAP law. An abortion ban is a law that … well … bans abortion—like Mississippi’s 15-week ban.
In cases involving TRAP laws, courts have to do an undue burden analysis. Planned Parenthood v. Casey, a case almost as foundational to abortion rights as Roe v. Wade, requires it.
And right now there’s a live fight about what kind of undue burden analysis courts need to do, thanks to Chief Justice John Roberts leaving a ticking time bomb in his concurring opinion in June Medical Services v. Russo this summer. Roberts may have helped Louisiana clinics stay open in the short term, but his ruling will likely end up wiping out clinic access across the country. It’s already being used to wipe out access in Kentucky.
But none of this should have anything to do with Mississippi’s case. Mississippi’s case is about a pre-viability ban. The TRAP law cases are about abortion regulations. There’s no need for an undue burden analysis when it comes to pre-viability bans because they are unconstitutional.
But no. Mississippi Attorney General Lynn Fitch has been desperately trying to get someone to buy her argument that the abortion ban isn’t really a ban. It’s a regulation. And if it’s not a regulation, it’s at most, a partial ban. And besides, Casey doesn’t ban all pre-viability abortion bans!
But that’s exactly what Casey does.
The Supreme Court in Casey said, “viability marks the earliest point at which a State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”
A state can start banning abortion after fetal viability. Not before.
That’s it. End of discussion. Everyone go home.
But Mississippi doesn’t want to go home. Mississippi wants the Court to analyze its pre-viability ban as if it were a TRAP law. If Mississippi can convince a court to apply the undue burden test to all abortion restrictions—including already unconstitutional pre-viability abortion bans—then Mississippi’s 15-week ban might stand a chance.
After all, you can’t even get an abortion in Mississippi after 16 weeks. Anti-choice legislators in Mississippi have made sure of that. So when you think about it, a 15-week ban is only a burden—if you can even call it that—for a week. And how many pregnant people will that even affect? It’s too few to even bother counting.
That’s Mississippi’s argument. And it might seem like a reasonable one if you ignore what the court in Casey said: “Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding.”
Got it? The Casey Court reaffirmed the holding of Roe. And what is that holding, pray tell?
“Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. “
One more time!
“A State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. “
Nuh-uh, says Mississippi in court documents filed with the Supreme Court. “Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.”
But Mississippi’s law isn’t a regulation. It’s a fucking ban.
Well fine, then, Mississippi flounces. “It’s a ban. But it doesn’t matter anyway because viability is the wrong standard. It’s outdated. Please, oh please, Justice Barrett, won’t you hear our cries and upend the foundation of abortion rights jurisprudence?” (Attorneys for Mississippi didn’t actually say this, but they may as well have since this will be one of the very first cases that Justice Barrett will consider.)
Is it obvious that Mississippi is getting on my goddamn nerves? Because Mississippi is getting on my goddamn nerves.
All of this nonsense is a transparent effort to prime the pump so that when Justice Barrett is seated, Mississippi and every other state controlled by anti-choice forces can float any bullshit argument before the Supreme Court and be relatively confident that the conservative supermajority, all of whom hate abortion, will buy it.
All these states need to do is give the conservative justices on the Supreme Court enough cover so that when they reverse either Roe and Casey—or interpret one or both cases in a way that further guts access to abortion care—states like Mississippi can implement laws that for more than 40 years have been unconstitutional.
And with the Supreme Court scheduled to discuss on Friday whether to take this case, Mississippi may get its wish.