U.S. Supreme Court Hears Mississippi Anti-Abortion Case That Could Affect Ohio and Other States

The court began hearing arguments Wednesday.

Dec 2, 2021 at 10:54 am

The U.S. Supreme Court's ruling on a Mississippi anti-abortion case could affect Ohio. - Photo: Claudio Schwarz, Unsplash
Photo: Claudio Schwarz, Unsplash
The U.S. Supreme Court's ruling on a Mississippi anti-abortion case could affect Ohio.

The Supreme Court is weighing potentially sweeping changes to the right to an abortion, after two hours of arguments Wednesday morning on a Mississippi law that bans most abortions after 15 weeks of pregnancy.

The court’s conservatives, who hold a 6-3 majority, appeared through their questions to be sympathetic to Mississippi’s arguments that its law should be upheld—and they also seemed open to the possibility of undoing other precedent-setting abortion cases.

Supporters of the Mississippi law argued not only that it should be upheld, but that two key cases that have determined when a woman has the right to seek an abortion also should be overturned: the 1973 Roe v. Wade decision as well as the 1992 Planned Parenthood v. Casey ruling.

That would allow states to decide if they want to allow the medical procedure within their borders, the lawyers contended.

“When an issue affects everyone, and when the Constitution does not take sides on it, it belongs to the people,” said Mississippi Solicitor General Scott Stewart, arguing that the precedents set in prior landmark abortion cases “have failed.”

Attorneys arguing on behalf of Mississippi’s only abortion clinic and of the federal government told the justices that the right to an abortion was correctly established in the Roe v. Wade decision and then reaffirmed in the Planned Parenthood v. Casey ruling.

Undoing that right would have devastating consequences for people seeking abortions throughout the country, they said.

Some may be forced to travel out of state to seek care. If they lack the money and time off from work to do so, they may have no option beyond carrying a child to term, even if it is not in their best interest or that of their family, the lawyers said.

“There is no less need now than there was 30 years or 50 years ago for women to be able to make this fundamental choice for themselves about their bodies, lives and health,” said Julie Rickelman, senior director of litigation at the Center for Reproductive Rights.

“Why is 15 weeks not enough time?” Chief Justice John Roberts asked Rickelman.

She noted that the Mississippi law would ban most abortions nine weeks earlier than the current legal standard, giving patients less time to navigate an array of regulatory barriers that some states have enacted to make it harder to seek an abortion.

The Roe decision established a legal right to an abortion during the first two trimesters of pregnancy, or 26 weeks. In the Casey decision, the court ruled that people can obtain an abortion until viability, or the point when a fetus can survive outside the womb — generally about 24 weeks.

The case argued Wednesday is Dobbs v. Jackson Women’s Health.

Ramifications for dozens of states

Wednesday’s hearing came after the top court already has been grappling with abortion rights.

Since announcing in May that the justices would take up the Mississippi case, the court has heard arguments over a Texas law designed to skirt the court’s past decisions and ban abortions about six weeks after a woman’s last menstrual cycle.

The pair of legal battles has thrust the contentious social issue back into the national spotlight, and thousands of activists in both support of and opposition to abortion rights flooded the sidewalks around the court on Wednesday to chant and wave signs.

Dr. Nisha Verma, an obstetrician-gynecologist who practices at Emory University in Atlanta, said she regularly attends local protests in support of abortion access, and is worried about what will happen in her state if Roe is overturned.

Many of her patients don’t know until their second or third trimester that they or their fetus have developed a medical issue that requires terminating a pregnancy, Verma said.

“A lot of times this is an act of compassion, that people are trying to do the right thing in their pregnancy or [for] their existing children,” she said.

The pending abortion case could spur a cascade of legal changes across two dozen states if justices back the restrictive Mississippi law — and potentially dismantle the landmark 1973 ruling affirming the right to an abortion.

A dozen states — including Louisiana, Tennessee, Missouri and Idaho — have “trigger laws” that would go into effect banning abortions if Roe v. Wade is overturned, according to the Guttmacher Institute, an organization focused on reproductive health and rights.

Michigan, Wisconsin, Arizona and five others still have abortion bans that pre-date Roe v. Wade on the books, which would become enforceable again if the case is overturned.

In Ohio, Republicans introduced House Bill 480 in November, which allows civil lawsuits against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion,” including paying for an abortion even through the use of insurance, according to the language of the bill. It mimics a Texas law currently before the U.S. Supreme Court, but goes further by proposing to ban nearly all abortions.

Kentuckians will vote next November on a constitutional amendment that could make it easier to ban abortion. House Bill 91 would create a new section of Kentucky's Constitution stating the Commonwealth does not secure or protect a right to or funding of abortion. Alabama, Louisiana, Tennessee and West Virginia have enacted similar amendments

Amanda Davis, of Virginia, said during an interview outside the court on Wednesday that she’s been attending protests against abortion rights since the 1990s. Her faith as a Christian helped her decide.

“The Bible says do not murder, and I consider abortion murder,” Davis said.

Debate over precedents

During Wednesday’s arguments, the court’s liberal members repeatedly emphasized the implications of undoing the prior rulings.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked at one point.

Justice Brett Kavanaugh, one of the justices appointed by former President Donald Trump, giving the court its conservative majority, noted that if the Mississippi law is upheld, states would not be barred from allowing abortion.

He listed a long line of major cases in which the Supreme Court overruled precedents, including Brown v. Board of Education, which found that racial segregation in schools violated the Constitution.

If the court had adhered to its earlier decisions in those cases, Kavanaugh said, “the country would be a much different place.”

Solicitor General Elizabeth Prelogar underscored how deeply the Roe decision has been woven into everyday American life, noting that while some people don’t agree with the decision, they know what the court ruled and what it means if they have an unintended pregnancy.

“For the court to reverse course now, I think would run counter to that societal reliance and the very concept we have of what equality is guaranteed to women in this country,” Prelogar said.

Ohio cities enact their own anti-abortion laws

A Mason anti-abortion ordinance is on hold as a petition against it is being reviewed.

After attempting to ban abortion within the city limits in previous council meetings, Mason City Council finally went through with it in October. During an Oct. 25 meeting, council members voted 4-3 to outlaw abortion at all gestational stages within Mason's city limits and punish those who "aid and abet" abortions through funding, transportation and more. Violators could be fined $2,500 and spend a year in prison.

Previous attempts to declare the ordinance an "emergency" and, thus, take effect immediately had failed.

The law was to take effect Nov. 24, but opponents — including Joy Bennett and members of Mason's business community — submitted a petition against it with 2,000 signatures. The petition, which pushes for a referendum or public vote rather than a council-mandated ordinance, is being reviewed for 10 days. The Board of Elections will validate signatures by Dec. 16.

Council members also had considered putting the issue to a public vote in October, but that motion received only four votes, not the five it needed.

There are no abortion providers within Mason's city limits.

In October, the Mason business community published an open letter condemning the legislation, stating that it is a risk to businesses. The authors claim that abortion bans inhibit employee recruitment, invite boycotts and have economic impacts. They say they “stand against policies and legislation that hinder people’s health, independence, and ability to fully succeed in the workplace.” 

“It puts our families, communities, businesses, and the economy at risk,” the authors said.

In passing the abortion-ban ordinance, Mason declared itself a "sanctuary city for the unborn," the second Warren County city to do so (it is no longer a "sanctuary city" while the ordinance is paused). In May, Lebanon council members unanimously passed an ordinance similar to Mason's ban; the ACLU of Ohio said Lebanon's legislation is “blatantly unconstitutional” and ripe for legal challenge.

“Anti-abortion politicians in Lebanon have no business interfering in people’s lives and health care,” ACLU of Ohio legal director Freda Levenson said at the time.

After the ordinance there passed, the ACLU placed a billboard in South Lebanon saying “abortion is legal in all of Ohio" because, regardless of the ban, abortion remains legal in the state up to 20 weeks gestation.

The landmark 1973 U.S. Supreme Court case Roe v. Wade established that pregnant people have the constitutional right to choose abortion without excessive interference from the government and also have the right to privacy to make that choice, later adding that people may choose abortion up to the point of "fetal viability." Today, many medical experts claim fetal viability generally begins after around 24 weeks of gestation.

Abortion is legal in Ohio only up to 20 weeks — well below experts' recommendation of at least 24 weeks.

Mason's ordinance includes ideas and terminology that are conservative or religion-based, including "The City Council finds that: (1) Human life begins at conception." and "(4) The Supreme Court's decision in Roe v. Wade, 410 U.S. 113 (1973), which invented a constitutional right for pregnant women to kill their unborn children through abortion, is a lawless and unconstitutional act of judicial usurpation, as there is no language anywhere in the Constitution that even remotely suggests that abortion is a constitutional right." Read the ordinance language.

Sanctuary Cities for the Unborn, a nonprofit group that's funded by the Right to Life of East Texas, reportedly helped Mason council members develop language for the ordinance.

A number of cities around the United States have approved or are considering severe abortion bans and restrictions. A recent Texas law outlaws abortions after six weeks of pregnancy and allows regular citizens to sue abortion providers and those who help a woman obtain an abortion. The law provides no exception in instances of rape or incest.

Earlier this year, the Satanic Temple filed a letter with the U.S. Food and Drug Administration arguing that its Texas members should have legal access to abortion pills. The group's attorneys contend that its status as a non-theistic religious organization should ensure access to abortion as a faith-based right. 

In the letter, the Temple argued that abortion pills Misoprostol and Mifepristone should be available for its use through the Religious Freedom Restoration Act, which protects Native Americans' use of peyote in religious rituals. The Temple said those same rights should apply to the drugs it uses for its own rituals. 

Recently, a Hamilton County judge blocked a 2020 law that targeted medication abortions via telemedicine. In April of this year, the judge said the state couldn’t ban medication abortions administered through telemedicine “until final judgment is entered in this case.” The same judge, in the same week, blocked an Ohio law regulating surgical abortion tissue disposal because the state had not created the forms, rules or regulations needed for those disposal regulations.

On April 5, Ohio Gov. Mike DeWine signed an executive order bypassing the legal tangle-up and suspending “the normal rule-making procedures” and permitting the Ohio Department of Health to immediately adopt rules related to the tissue disposal law.

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