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Mississippi brief: Supreme Court should overturn Roe v. Wade

Attorney General Lynn Fitch | Source: Mississippi Office of the Attorney General

Mississippi is asking the U.S. Supreme Court to overturn its landmark 1973 ruling that legalized abortion nationwide.

Posted: Jul 22, 2021 4:48 PM

JACKSON, Miss. (AP) — The U.S. Supreme Court should overturn its landmark 1973 ruling that legalized abortion nationwide and should let states decide whether to regulate abortion before a fetus can survive outside the womb, the office of Mississippi's Republican attorney general argued in papers filed with the high court on Thursday.

“Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion," Mississippi Attorney General Lynn Fitch and four of her attorneys wrote in the brief.

The arguments are a direct challenge to the central finding of the court's 1973 Roe v. Wade decision and its 1992 decision in a Pennsylvania abortion case. Both rulings said states may not put an “undue burden” on abortion before viability. The Mississippi attorneys argue that the rulings are “egregiously wrong.”

The Mississippi case is the first big abortion-rights test in a Supreme Court reshaped with three conservative justices nominated by former President Donald Trump.

A 6-3 conservative majority, with the three Trump nominees, said in May that the court would consider arguments over a Mississippi law that would ban abortion at 15 weeks. Justices are likely to hear the case this fall and could rule on it in the spring.

Abortion rights supporters have said that if justices uphold the Mississippi law, that could clear the way for states to enact more restrictions on the procedure, including bans on abortion once a fetal heartbeat is detected, as early as six weeks.

“Restrictions on abortion care disproportionately harm people who already face significant barriers to accessing health care — particularly Black, Indigenous, and people of color and people having difficulty making ends meet,” the Center for Reproductive Rights, which is defending Mississippi's only abortion clinic in its challenge of the 15-week ban, said in a statement Thursday.

“If Roe falls, states hostile to abortion rights could move to ban abortion entirely, and the impact will fall hardest on the same people,” the center said.

Republican lawmakers in several states have been pushing laws designed to challenge Roe v. Wade. A federal district judge on Tuesday blocked an Arkansas law that would ban most abortions, ruling that the law is “categorically unconstitutional” because it would ban the procedure before the fetus is considered viable.

The Mississippi 15-week law was enacted in 2018, but was blocked after a federal court challenge. The state’s only abortion clinic, Jackson Women's Health Organization, remains open and offers abortions up to 16 weeks of pregnancy. Clinic director Shannon Brewer has said about 10% of its abortions there are done after the 15th week.

More than 90% of abortions in the U.S. take place in the first 13 weeks of pregnancy, according to the Centers for Disease Control and Prevention.

The Mississippi clinic has presented evidence that viability is impossible at 15 weeks, and an appeals court said that the state “conceded that it had identified no medical evidence that a fetus would be viable at 15 weeks.” Viability occurs roughly at 24 weeks, the point at which babies are more likely to survive.

Mississippi argues that viability is an arbitrary standard that doesn’t take sufficient account of the state’s interest in regulating abortion.

The Mississippi law would allow exceptions to the 15-week ban in cases of medical emergency or severe fetal abnormality. Doctors found in violation of the ban would face mandatory suspension or revocation of their medical license.

“That law rationally furthers valid interests in protecting unborn life, women’s health, and the medical profession’s integrity. It is therefore constitutional,” the Mississippi attorney general's office wrote in its Thursday filing.

The attorney who will make Mississippi's oral arguments before the Supreme Court is the state solicitor general, Scott G. Stewart, a former clerk for Justice Clarence Thomas.

Also in the filing Thursday, the Mississippi attorneys wrote that if the Supreme Court does not overturn the standard that abortion restrictions should face heightened-scrutiny, the court "should at minimum hold that there is no pre-viability barrier to state prohibitions on abortion and uphold Mississippi’s law.”

The Mississippi attorneys wrote that circumstances for women have changed since the 1973 and 1992 Supreme Court rulings.

“Today, adoption is accessible and on a wide scale women attain both professional success and a rich family life, contraceptives are more available and effective, and scientific advances show that an unborn child has taken on the human form and features months before viability,” the Mississippi attorneys wrote. “States should be able to act on those developments.”

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 468498

Reported Deaths: 9100
CountyCasesDeaths
Harrison31907468
Hinds30552569
DeSoto29532342
Jackson22868335
Rankin21016355
Lee14393214
Madison13961263
Jones13053215
Forrest12879231
Lauderdale11244292
Lowndes10148171
Lamar9972122
Pearl River8569208
Lafayette8008136
Hancock7110107
Oktibbeha6764117
Washington6756146
Neshoba6350200
Monroe6304156
Warren6267159
Panola6036122
Pontotoc599292
Bolivar5960143
Marshall5917115
Union558885
Pike5424133
Lincoln5192127
Alcorn509388
George454766
Scott447392
Leflore4377138
Tippah431780
Itawamba429192
Prentiss429074
Copiah423883
Simpson4238108
Wayne419663
Tate418999
Adams4174109
Yazoo411486
Sunflower4057104
Covington404891
Marion399699
Leake389784
Coahoma385996
Newton360273
Grenada3489100
Stone342657
Tishomingo320987
Attala318285
Jasper308261
Winston298191
Clay282672
Chickasaw277464
Clarke271784
Holmes257685
Calhoun256939
Smith241546
Yalobusha215447
Tallahatchie213849
Walthall203457
Lawrence202431
Greene202045
Perry195053
Amite191251
Webster191141
Noxubee173437
Montgomery168652
Jefferson Davis164041
Carroll158936
Tunica146533
Benton137531
Kemper136538
Claiborne124134
Choctaw123824
Humphreys122036
Franklin114127
Quitman100925
Wilkinson98335
Jefferson85832
Sharkey61620
Issaquena1916
Unassigned00

Alabama Coronavirus Cases

Cases: 757893

Reported Deaths: 12784
CountyCasesDeaths
Jefferson1082301712
Mobile694251158
Madison47738562
Baldwin35347420
Shelby34758281
Tuscaloosa32576495
Montgomery32249645
Lee21576200
Calhoun19621363
Morgan19061307
Etowah18363413
Marshall17028252
Houston15881337
St. Clair14724270
Limestone13908178
Elmore13812239
Cullman13756228
Lauderdale12909263
Talladega12124200
DeKalb11705220
Walker10047303
Autauga9371119
Blount9272146
Jackson8970132
Coffee8550150
Colbert8229160
Dale8162142
Escambia632298
Tallapoosa6255165
Covington6214153
Chilton6152128
Russell586753
Franklin558292
Chambers5155127
Dallas4569173
Marion4490114
Clarke447070
Pike439188
Geneva415999
Lawrence4002101
Winston399982
Bibb388975
Barbour334667
Marengo317778
Monroe306844
Butler305878
Pickens296166
Henry288550
Randolph288255
Hale282981
Cherokee275649
Fayette268569
Washington241844
Crenshaw226962
Clay219260
Macon211154
Cleburne205746
Lamar184638
Conecuh173337
Lowndes167856
Coosa160031
Wilcox153033
Bullock145642
Perry132430
Sumter122635
Greene117941
Choctaw71925
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