U.S. Supreme Court overturns Roe v. Wade

by Will Stribling, Mississippi Today
June 24, 2022

The U.S. Supreme Court on Friday overturned Roe v. Wade, the 1973 landmark case that established a person's right to an abortion. 

Mississippi will likely be one of 13 states to ban the abortion procedure immediately due to a trigger law passed by legislators in 2007. 

“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” Justice Samuel Alito wrote in his opinion.

Republican state officials in Mississippi lauded the decision on Friday.

“Today marks a new era in American history — and a great day for the American
people,” said Attorney General Lynn Fitch in a statement. “I commend the Court for restoring constitutional principle and returning this important issue to the American people.”

Fitch did not say in her statement whether she has made the official determination that Roe has been overturned, which would effectively put Mississippi's trigger law into effect.

“Our state's historic case before the United States Supreme Court was the catalyst for overturning Roe v. Wade and has made the nation safer for children than it was just a few short hours ago,” said Gov. Tate Reeves.

Chief Justice John Roberts, concurring in the judgment issued by the Court, wrote that he would have taken “a more measured course” by getting rid of the fetal viability line established by Roe and Casey, but not overturning Roe entirely.

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote in their dissent that above all others, poor women who cannot afford to seek out an abortion in a state where it remains legal will be harmed by the Court's ruling.

“As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions,” the justices wrote. “A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.”

Dobbs v. Jackson Women's Health Organization centers around Mississippi legislation passed and signed in 2018 called “The Act to Prohibit Abortion After 15 Weeks.” That law and an even stricter law that would ban abortion after six weeks were both ruled unconstitutional twice in the last few years — by both a U.S. District Court and the 5th Circuit Court of Appeals.

The U.S. Supreme Court in May 2021 decided it would take up Dobbs after meeting 13 times to consider it, a move many legal analysts called unprecedented. 

This marked the first time since the landmark 1973 abortion rights case Roe v. Wade that the U.S. Supreme Court has taken up a a pre-viability ban — a law that prohibits access to abortion based on the amount of time pregnant before the fetus is viable, or around 24 weeks.

The authors of Mississippi's abortion ban bill said that one motivating factor for passing it was that a challenge to the law could make its way to the U.S. Supreme Court.

“Assuming this bill were to become law, these challenges take two to three years to make their way up to the Supreme Court,” state Sen. Joey Fillingane, the Republican who authored the bill, said at the time. “The United States Supreme Court … has indicated that the state has a couple of interests when it comes to regulating abortion. One is protecting the health and life of the mother. Another is protecting the potentiality of human life.”

After the New Orleans-based federal appeals court upheld the lower ruling by also overturning both Mississippi's 15-week and six-week bans, Attorney General Lynn Fitch petitioned the Supreme Court to take the case, citing state's interests in regulating abortion.

In Mississippi's original appeal to the Supreme Court, 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.

The particular question the justices agreed to decide in accepting the case was “whether all pre-viability prohibitions on elective abortions are unconstitutional.” 

Fitch then filed a brief on July 22, 2021, that abandoned this earlier, narrower focus on pre-viability restrictions.

In the brief, Fitch urged the Court to overturn Roe, calling it and further abortion-related rulings, most notably Planned Parenthood v. Casey, “egregiously wrong.” The state 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.”

When the Supreme Court heard oral arguments for the Dobbs case on Dec. 1, 2021, Chief Justice John Roberts, viewed as the most moderate of the court's conservative wing, appeared frustrated with what he suggested was a bait-and-switch strategy the state used to transform the case into a challenge to Roe and Casey. Roberts voiced his preference to stick to that narrower question on pre-viability bans, saying “the thing that is at issue before us today is 15 weeks.” 

Justice Samuel Alito rejected that position, saying “the only real options we have” are to reaffirm Roe or to overrule it.

This story will be updated.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.