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Cover Story
The Supreme Court Will Review a Mississippi Abortion Law
by Wanda Franz, Ph.D.
On May 10, the Supreme Court announced that it would hear a case from Mississippi challenging Roe vs. Wade and Doe vs. Bolton. This is the first case on abortion taken up by the Supreme Court’s presumed new 6-to-3 conservative majority.
The case is Dobbs vs. Jackson Women’s Health Organization. This case challenged a law passed by the Republican-dominated Mississippi legislature in 2018 banning abortions if “the probable gestational age of the unborn human” was determined to be more than 15 weeks.” According to the Guttmacher Institute, in 2016, 94.6% of all abortions were performed at 15 weeks of pregnancy or earlier. Only 5.4% of abortions were performed at 16 weeks or later.
The law was determined by the lower courts to be plainly unconstitutional under Roe and Doe. Judge Carlton W. Reeves of Federal District Court in Jackson, MS blocked the law in 2018 saying the legal issue was straightforward and questioning the state lawmakers’ motives.
A three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, affirmed Judge Reeves’ ruling. However, one of the judges, Judge James C. Ho, issued an opinion expressing misgivings about the current abortion policy as determined by the Supreme Court: “Nothing in the text or original understanding of the Constitution establishes a right to an abortion. Rather, what distinguishes abortion from other matters of health care policy in America – and uniquely removes abortion policy from the democratic process established by our Founders – is Supreme Court precedent.”
This case will take up the question of the timing in utero of the right to abortion. Lynn Fitch, Mississippi’s attorney general, urged the justices to hear the state’s appeal in order to reconsider their abortion jurisprudence: “Viability is not an appropriate standard for assessing the constitutionality of a law regulating abortion.”
“Viability is not a characteristic of the baby but of how advanced our technology has become,” said Carol Tobias, president of National Right to Life.” Jennifer Popik, J.D., federal legislative director for NRLC said, “There is precedent for prohibiting abortions before viability. The 2003 Partial-Birth Abortion Ban Act banned a particular abortion procedure that was used both before and after what is considered viability. It was found to be constitutional by the U.S. Supreme Court in 2007.”
The debate over partial-birth abortions opened the door for new considerations by the courts that paved the way for future rulings. West Virginia passed the Partial-Birth Abortion Ban Act in 1997, which helped to build the nation-wide case for the bill in conjunction with other state legislatures. The Mississippi case could give the conservative majority the opportunity to overturn Roe and Doe.
“West Virginia has always been on the cutting edge of promoting legislation that would save lives and provide the courts with the legal arguments to change the abortion jurisprudence,” said Wanda Franz, president of West Virginians for Life. “We will continue to work to pass laws that will help to dismantle the Supreme Court’s original abortion decisions.”