Supreme Court Urged to Reject Mississippi’s Attack on Roe v. Wade

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In a caller little successful a large termination case, a session and a doc asked the tribunal to onslaught down a authorities instrumentality mostly banning the process aft 15 weeks of pregnancy.

Supporters of termination  rights protested extracurricular  the Supreme Court successful  Washington this month.
Credit...Kenny Holston for The New York Times

Adam Liptak

Sept. 13, 2021, 4:21 p.m. ET

WASHINGTON — Abortion providers successful Mississippi urged the Supreme Court connected Monday to reaffirm Roe v. Wade, the 1973 determination that established a law close to abortion.

The filing came successful the astir important termination lawsuit successful decades, successful which officials successful Mississippi person asked the court’s recently expanded blimpish bulk to overrule Roe and to prolong a authorities instrumentality that mostly bans abortions aft 15 weeks of pregnancy.

Mississippi’s arguments, the little said, amounted to “a petition that the tribunal scuttle a half-century of precedent and invitation states to prohibition termination entirely.”

The providers’ little came little than 2 weeks aft a intimately divided Supreme Court refused to artifact a Texas law that banned astir abortions aft six weeks, 1 that had been drafted to evade challenges to it successful national court. But the ruling successful the Texas lawsuit was procedural and provisional, portion the Mississippi filing came successful a lawsuit presenting a frontal situation to Roe and the decisions that followed it.

Nancy Northup, the president of the Center for Reproductive Rights, which represents the providers, said the Mississippi lawsuit had the imaginable to bash distant with the close to termination successful overmuch of the nation.

“Right now,” she said, “Texas has managed to prohibition termination adjacent arsenic Roe stands, and different states person said they volition travel successful its footsteps. While Texas is circumventing Roe and the Constitution, Mississippi is openly asking the tribunal to overturn Roe. If the tribunal grants Mississippi’s petition to overturn Roe, ample swaths of the South and Midwest — wherever termination is already hard to entree — volition destruct termination completely.”

Attorney General Lynn Fitch of Mississippi, a Republican, said that the little offered “no coagulated arguments successful defence of Roe, and the tribunal should overturn this flawed and hopelessly unworkable precedent.”

The tribunal has not yet scheduled the statement successful the case, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, though sometime successful December would look to beryllium a bully bet.

The caller brief, filed connected behalf of the state’s lone termination session and its aesculapian director, said the Supreme Court had already considered and rejected Mississippi’s arguments against Roe successful different cases. The astir notable is Planned Parenthood v. Casey, the 1992 determination that reaffirmed Roe’s halfway holding and said states whitethorn not enforce an “undue burden” connected the close to termination earlier fetal viability, the constituent astatine which fetuses tin prolong beingness extracurricular the womb, oregon astir 23 oregon 24 weeks.

The instrumentality astatine contented successful the caller lawsuit was enacted successful 2018 by the Republican-dominated Mississippi Legislature. It banned abortions if “the probable gestational property of the unborn human” was determined to beryllium much than 15 weeks. The statute included constrictive exceptions for aesculapian emergencies oregon “a terrible fetal abnormality.”

Lower courts blocked the Mississippi statute, calling it a cynical and calculated battle connected abortion rights straight astatine likelihood with Supreme Court precedents. The justices agreed to perceive the case successful May, conscionable months aft Justice Amy Coney Barrett, who has said she personally opposes abortion, joined the court. She replaced Justice Ruth Bader Ginsburg, a proponent of termination rights, who died past year.

In their petition seeking Supreme Court review, authorities officials told the justices that “the questions presented successful this petition bash not necessitate the tribunal to overturn Roe oregon Casey,” though they did rise the anticipation successful a footnote. Once the tribunal agreed to perceive the case, the officials shifted their accent and began a sustained battle connected those precedents.

In a brief filed successful July, Ms. Fitch wrote that Roe was “egregiously wrong.”

“The Constitution does not support a close to abortion,” she wrote. “The Constitution’s substance says thing astir abortion. Nothing successful the Constitution’s operation implies a close to termination oregon prohibits states from restricting it.”

Ms. Fitch told the justices that the scope of termination rights should beryllium determined done the governmental process. “The nationalist fever connected termination tin break,” she wrote, “only erstwhile this tribunal returns termination argumentation to the states — wherever statement is much common, compromise is often possible, and disagreement tin beryllium resolved astatine the ballot box.”

In the little filed connected Monday, the Mississippi termination providers suggested that the alteration successful the state’s attack represented a bait-and-switch maneuver that could warrant dismissal of the case.

The precise question the justices agreed to determine was “whether each previability prohibitions connected elective abortions are unconstitutional.” Depending connected however the tribunal answers that question, it could reaffirm, revise oregon bash distant with the longstanding law model for termination rights.

The providers devoted overmuch of their little to a defence of viability arsenic a principled and workable dividing enactment betwixt erstwhile states tin prohibition abortions and erstwhile they cannot.

The enactment has worked successful practice, the little said. “Federal courts person applied the viability regularisation with singular uniformity and predictability for 5 decades,” it said, “finding previability bans connected termination invalid careless of whether those bans operated astatine six, 12 oregon 20 weeks and careless of the reasons states alleged to warrant them.”

Mississippi has not travel guardant with a bully alternate to viability, the providers wrote. “A enactment asking this tribunal to instrumentality the sedate measurement of overruling a regularisation of instrumentality — 1 that has been repeatedly reaffirmed — should astatine slightest suggest and earnestly make an alternate ineligible framework,” the little said.

The substance mentioned the Texas instrumentality lone successful passing, arsenic a foreshadowing of the chaos and upheaval that it said would travel a determination overruling Roe.

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