I’m going to be honest with you.
I am infuriated by the arguments that Mississippi’s attorneys are making to the Supreme Court in Dobbs v. Jackson Women’s Health Organization, the most important abortion rights case in nearly five decades.
Not because my interpretation of the law is different from the interpretation offered by Mississippi Attorney General Lynn Fitch.
It’s because Mississippi’s arguments are so disingenuous and so improper, from both a procedural and a legal standpoint—while somehow managing to maintain an unwarranted haughtiness that borders on the self-righteous—that I find it hard to believe that any attorney would have the audacity to sign their name to these briefs, much less present these arguments to the Supreme Court.
But that is exactly what Mississippi is planning to do.
In two months, the Supreme Court will hear arguments in Dobbs v. Jackson Women’s Health Organization. The case involves Mississippi’s Gestational Age Act, which bans abortion after 15 weeks’ gestation. And by July, the Supreme Court is expected to issue a decision in that case that will explain why it has decided to abandon nearly 50 years worth of precedent—precedent relied upon by millions of women and pregnant people to control their reproductive, and therefore their economic, lives.
But make no mistake: The Court has already abandoned that precedent.
On September 1, in a case called Whole Woman’s Health v. Jackson, the Supreme Court let a sinister six-week abortion ban in Texas, SB 8, go into effect. By doing nothing to intervene and block the law, the Supreme Court functionally killed Roe v. Wade on the shadow docket—without benefit of oral argument or briefing from the parties—before the abortion rights case could even make it to its 50th birthday.
Texas SB 8 bans abortion at six weeks’ gestation, which is approximately when embryonic cardiac activity—what anti-abortion advocates provocatively call a “heartbeat” to tug at the heartstrings of people who are on the fence about abortion—can be detected. (A six-week embryo does not have a heartbeat nor does it have a cardiovascular system.) That part is fairly mundane: States across the country have been throwing six-week bans at the wall like so much spaghetti for years. Thus far they have been unsuccessful; no federal appeals court in the country has upheld one of these so-called heartbeat bans.
The novel part is the enforcement mechanism Texas Republicans designed to evade an injunction. The law disallows enforcement by government actors—because if the traditional state actors (the attorney general, for example) were authorized to enforce the law, clinics would simply file a lawsuit against the attorney general, seek an injunction, and a judge would block the law like judges have blocked so many unconstitutional pre-viability bans. But Texas Republicans’ goal is to inflict as much damage as possible, and for that to happen, the law needs to go into effect and remain in effect for more than a few days. Texas has not had great success in the past in getting their abortion restrictions past federal courts—mostly because Texas Republicans keep passing patently unconstitutional laws.
The Supreme Court has made clear that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”
Roe and Planned Parenthood v. Casey prohibit states from banning abortion before a pregnancy is viable, which happens at about 24 weeks. Casey permits regulations on the time and conditions of accessing pre-viability abortion as long as those regulations do not pose an undue burden. Another key abortion rights case, 2007’s Gonzales v. Carhart, even permits states and the federal government to ban a particular method of pre-viability abortion—the so-called partial birth abortion.
But states cannot ban access to pre-viability abortions.
After viability, states are free to ban abortion outright, as long as an exception for the health of the pregnant patient is in place.
So why did the Court let Texas SB 8, a pre-viability (and therefore unconstitutional) abortion ban, take effect? The cynical answer is that five of the nine justices—Thomas, Alito, Gorsuch, Kavanaugh, and Barrett—are part of Leonard Leo’s Federalist Society hive mind and have been champing at the bit, per the training of their dark-money masters, to overrule Roe v. Wade. And if outright overruling Roe will displease their overlords, then they will have to settle for making it exponentially more difficult than it already is to access safe, legal abortion.
The fact that the Court didn’t do what it should have done—block the unconstitutional six-week ban while litigation proceeded in the district court and the Fifth Circuit Court of Appeals—signals trouble for Jackson Women’s Health Organization, Mississippi’s sole remaining abortion clinic.
In Dobbs v. Jackson Women’s Health, Mississippi has asked the Supreme Court to do two things. First, Mississippi wants the Court to reexamine the bright viability marker in Roe. The viability standard has been quite a thorn in the side of the anti-choice movement, and it has made it difficult for them to get any abortion ban prior to about 24 weeks’ gestation to survive a court challenge.
Second, Mississippi has asked the Court to “clarify that Casey’s ‘undue burden’ standard applies to all abortion regulations, pre- and post-viability.”
This is where Mississippi’s willingness to manipulate legal arguments and finagle with the plain meaning of words becomes craven.
To understand why, I’m going to have to repeat myself.
After viability, states are free to ban abortion. They are free to regulate abortion. They’re free to take abortion into the woods, tie it to a tree, slather it in honey, and release several hungry bears. As long as an abortion ban contains a health exception, the Supreme Court doesn’t care what states do after viability.
So let me ask you this: If states have full freedom to ban abortion after viability, why would there need to be an undue burden analysis of post-viability regulations?
Put another way, banning abortion after viability has nothing to do with whether a pre-viability regulation is an undue burden. The Court has already said that states can ban abortion after viability, so there’s literally no such thing as a post-viability undue burden.
So yes, Mississippi: The undue burden standard applies to all abortion regulations. But Mississippi’s Gestational Age Act—which prohibits performing abortions after 15 weeks and therefore acts as a ban on abortion after 15 weeks—is not a regulation.
IT’S A BAN.
But let’s set aside Mississippi’s grossly disingenuous “this ban is a regulation” gambit for a moment. The Supreme Court agreed to hear Dobbs v. Jackson Women’s Health with respect to only one question: Whether all pre-viability prohibitions on elective abortions are unconstitutional.
The Supreme Court didn’t ask Mississippi for its “it’s not a ban; it’s a regulation” song and dance. It didn’t ask Mississippi for its musings on the applicability of the undue burden standard to abortion bans masquerading as regulations.
So why is Mississippi persisting in its bizarre argument that its 15-week gestational ban is actually a regulation?
In its latest submission to the Court, Mississippi goes so far as to accuse Jackson Women’s Health of creating a strawman, and it’s actually fairly infuriating:
Instead of [JWHO] addressing head-on whether all pre-viability regulations regarding elective abortions are unconstitutional, they create a strawman, claiming dozens of times that the Gestational Age Act violates Casey’s viability line as a “pre-viability abortion ban.”
Repetition does not make reality. Mississippi’s law is not a ban on all pre-viability abortions; it allows a woman to have an elective abortion up to 15 weeks lmp [after the last menstrual period] and contains exceptions for the mother’s and growing baby’s life and health.
No one—and certainly not Jackson Women’s Health—is claiming that Mississippi’s law is a ban on all pre-viability abortions. Rather, Jackson Women’s Health is claiming, accurately, that Mississippi’s law is a pre-viability abortion ban because it bans abortion between 15 and 24 weeks. The fact that Mississippi benevolently deigned to permit pregnant people to obtain an abortion up until 15 weeks doesn’t help the pregnant Mississippians seeking an abortion after 15 weeks. For those pregnant Mississippians, the law acts as a total abortion ban.
This is not complicated; it’s not rocket science. Mississippi is playing fast and loose with language in an effort to confuse the issue. It’s grossly manipulative. And it shouldn’t work, at least not for people arguing in good faith.
But when it comes to the Supreme Court, good faith is a relic of the past.