In a brief filed on July 22, Mississippi Attorney General Lynn Fitch urged the U.S. Supreme Court to overrule Roe v. Wade, the landmark 1973 decision that ruled that the Constitution protects a pregnant person’s right to have an abortion.
In the brief, Fitch called Roe and further abortion-related rulings, most notably Planned Parenthood v. Casey, “egregiously wrong” and argued they recognize a right with no actual Constitutional basis.
“They have proven hopelessly unworkable,” Fitch wrote. “They have inflicted profound damage… And nothing but a full break from those cases can stem the harms they have caused.”
The case at the center of Fitch’s brief, Dobbs v. Jackson Women’s Health Organization, revolves around Mississippi’s ban on abortions after 15 weeks of pregnancy. The Supreme Court agreed to review the case in May, marking the first time since Roe that the Supreme Court has taken up a a pre-viability ban case — a law that prohibits access to abortion based on the amount of time pregnant before the fetus is viable, or around 24 weeks when it is able to live outside the womb.
The 15-week ban, passed by state lawmakers in 2018 and immediately blocked by lower federal courts, will provide one of the first reproductive rights cases argued before the Supreme Court since Justice Amy Coney Barrett was confirmed in 2020, creating the current 6-3 conservative majority.
Fitch argued in the brief that questions over abortion access should be left to state legislators and voters.
“The national fever on abortion can break only when this court returns abortion policy to the states — where agreement is more common, compromise is often possible and disagreement can be resolved at the ballot box,” Fitch wrote.
If the Supreme Court were to overturn Roe, an existing state law will be triggered banning abortion in most instances in Mississippi. The law, which would permit abortions only when the mother’s life is at risk and in cases of rape, was passed in 2007 by the Mississippi Legislature. Nine other states have similar “trigger laws” in effect.
The particular question the justices agreed to decide in the case is “whether all pre-viability prohibitions on elective abortions are unconstitutional.”
In Mississippi’s original appeal to the Supreme Court last year, Fitch argued the 15-week ban complied with existing precedent, and that the court should only overturn Roe if it concluded there was no other way to uphold the ban. Fitch’s latest brief abandoned this earlier, narrower focus on pre-viability restrictions.
Fitch’s brief also goes against how Gov. Tate Reeves described the case during a June 6 appearance on CNN’s “State of the Union.”
“The question is not are you going to overturn Roe v. Wade, the question is: The science has changed and therefore it makes sense for the court to review their decisions from the past and this is a vehicle in which for them to do it,” Reeves said. “Let me just tell you that for people such as myself that are pro-life, I believe that the Supreme Court made a mistake in the 1970s, but that’s not the issue at stake that is before the court, hopefully when the arguments are heard sometime in the fall.”
Jackson Women’s Health Organization, Mississippi’s only abortion clinic, only performs abortions until 16-weeks, though current Mississippi law only bans abortion at 20-weeks.
Nancy Northup, president of the Center for Reproductive Rights, an advocacy group that is representing JWHO in the Dobbs case, said Fitch’s brief “reveals the extreme and regressive strategy, not just of this law, but of the avalanche of abortion bans and restrictions that are being passed across the country.”
The Supreme Court’s next term begins in October, with a ruling in the Dobbs case likely coming sometime in 2022. The Court’s ruling could reaffirm Roe and Casey, hollow them out, or overturn them all together.