Today, the U.S. Supreme Court, an institution that has upheld the basic right to legally access abortion in this country for almost 50 years, will hear oral arguments in Dobbs v. Jackson Women’s Health Organization. At the heart of this case – the most consequential abortion rights case since 1973’s Roe v Wade and 1992’s Casey v. Planned Parenthood – is a Mississippi anti-abortion law that bans almost all abortion after 15 weeks. The fact that the Supreme Court decided to hear this case and that, with the seating of Justice Amy Coney Barrett in September 2020, it now features a 6-3 anti-abortion majority, sends a strong and deeply worrisome signal that the Court may upend abortion access across the country in 2022.
Since Roe v. Wade established that states could not arbitrarily ban abortion prior to fetal viability (a medical standard generally considered to be around 24 weeks in pregnancy), anti-abortion lawmakers have spent a great deal of effort and public resources on passing and defending restrictive laws that seek to get around the legal precedent set in Roe. Unfortunately, these efforts often have been successful, with states like North Carolina and Mississippi requiring medically unnecessary “waiting periods,” parental consent for minors, and targeted, medically unsound regulations designed to close clinics and intimidate patients and providers – something that has left the majority of counties in both states without an abortion provider.
The law at the heart of the Dobbs case, however, goes a step further by outright banning almost all abortion after 15 weeks of pregnancy – two-plus months prior to the standard set by Roe in 1973. In a legal system with nonpartisan judges that respected precedent and the rule of law, the Mississippi statute should have been struck down immediately. It’s clearly in violation of both Roe and the Casey ruling, which proscribed laws that create an “undue burden” on access to abortion. That the case was taken, and that the plaintiffs have expressly asked for both the Roe and Casey decisions to be overturned, indicates anti-abortion politics are likely going to play a key factor in the Court’s decision, rather than questions of constitutionality, the human right to privacy and bodily autonomy, or freedom from interference by the state in one’s personal decisions.
While we can’t ever be sure how U.S. Supreme Court decisions will shake out, we currently have a disturbing example of the Court’s commitment to upending abortion access in the reproductive healthcare crisis that has recently overtaken Texas.
Since Texas effectively prohibited all abortion with the enactment of a post-six-week ban that went into effect Sept. 1, the Court has been asked to intervene twice and has refused to do so. Abortion has been essentially unavailable in Texas for 90 days, which is absolutely counter to current constitutional law and precedent. Yet when asked to weigh in, the highest court in the land has effectively shrugged its shoulders. These are not the actions of a court that takes precedent, the rule of law, or even its own recent case history seriously.
Abortion rights supporters in Mississippi and Texas – with their rallies, creative billboard campaigns, and extended and intricate networks of support for people in their states who need abortion – are not letting their stories be rewritten by gerrymandered legislatures and corrupt political actors. Many of us in North Carolina are fighting right alongside them. We know that what happens in Mississippi when the Dobbs decision is announced next year is not going to stay in Mississippi.
Just as we’ve seen with the Texas statute, anti-abortionists in other states will rush to copy these laws, even if they are not able to outright ban all abortion. This might mean more pre-viability bans, or increasingly burdensome restrictions designed to shame patients, intimidate providers and close clinics, or an outright criminalization and punishment of those seeking or providing abortion. Even without directly overturning Roe, a further undermining of its precedent will leave us with an even more chaotic and highly inequitable patchwork of abortion access across the country.
We need to be clear that any court decision that does not soundly rebuke the current arbitrary and ideologically-motivated pre-viability bans in both Mississippi and Texas will constitute a complete disregard for the Court’s own precedent, and a huge loss for reproductive freedom.
Of course, no matter what happens in the Dobbs case, we know that many people, as throughout history, will not stop seeking abortion just because it’s criminalized, stigmatized, or made hard to obtain. Abortion is already all of these things for too many people, but patients, providers, and advocates continue to band together to help get people the care they need. A decision further undermining or even overturning Roe will likely put more people in danger, and leave them more targeted and further marginalized, but they will not stop needing this component of reproductive healthcare. The American public, as we have throughout the decades, will continue to support the right to access abortion, and we’ll keep fighting to ensure abortion is available to those who need when they need it.
Tara Romano is the Executive Director of NARAL-Pro Choice NC.