“The right to decide whether to continue a pregnancy is grounded in the Fourteenth Amendment’s protection against deprivation of a person’s liberty without due process of law,” Julie Rikelman, a lawyer for the Center for Reproductive Rights argued on behalf of the clinic.
The justices are set to hear arguments in the case during the upcoming term and will consider the state’s request to overturn Roe v. Wade.
Rikelman is representing Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and the clinic’s medical director, Sacheen Carr-Ellis. In the new brief she told the justices that if they were to uphold the state ban the “fallout would be swift and certain.”
“As abortion bans are enforced — or the threat of enforcement looms — large swaths of the South and Midwest would likely be without access to legal abortion,” she said.
The new brief comes to the court at an unusual time. That is because while the justices consider the Mississippi case over the next few months, reading countless friend-of-the-court briefs and holding oral arguments sometime this winter, they took an emergency action in a separate case out of Texas earlier this month, that allowed a six-week ban to go into effect, blocking most abortions in the state.
“This is a tense, strange moment for reproductive freedom at the Supreme Court,” said lawyer Joshua Matz at Kaplan Hecker & Fink.
“On the one hand, the Court issued an order two weeks ago that disclaimed any ruling on abortion rights but effectively overturned Roe v. Wade in Texas,” Matz said. “On the other hand, the Court is even now considering a major case that asks them to completely overrule Roe, or to at least eviscerate most of its protections.”
Eventually, the Supreme Court will likely once again weigh in on the Texas case and settle the uncertainty brought on by the two laws. How the Texas dispute returns to the high court is still unclear, although it may ultimately consider a challenge brought by the Department of Justice suing the state directly.
Mississippi’s Gestational Age Act, passed in 2018 but blocked by two federal courts, allows abortion after 15 weeks “only in medical emergencies or for severe fetal abnormality” and has no exception for rape or incest. If doctors perform abortions outside the parameters of the law, they will have their medical licenses suspended or revoked and may be subject to additional penalties and fines.
Roe v. Wade is the 1973 landmark Supreme Court decision legalizing abortion nationwide prior to viability, which can occur at around 24 weeks of pregnancy.
Mississippi’s attorney general, in a brief filed in July, argued that Roe v. Wade was “egregiously wrong” and should be overturned .
“The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition” state Attorney General Lynn Fitch told the justices.
Fitch said the case for overruling Roe is “overwhelming.”
The justices deliberated for months whether to take up the Mississippi dispute, finally announcing their decision last spring and sending shock waves through groups supporting abortion rights, who are fearful that the conservative majority — bolstered with three of President Donald Trump’s appointees — will upend long-established constitutional protections for access to abortion.
A district court blocked the law in a decision affirmed by a federal appeals court.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed and re-affirmed) a woman’s right to choose an abortion before viability,” a panel of judges on the 5th US Circuit Court of Appeals said in December 2019. “States may regulate abortion procedures prior to viability so long as they do not ban abortions,” the court held, concluding that “the law at issue is a ban.”