on Nov 29, 2021
at 7:11 pm
This article is part of a symposium on the upcoming argument in Dobbs v. Jackson Women’s Health Organization. A preview of the case is here.
Fatima Goss Graves is the president and CEO of the National Women’s Law Center.
In Dobbs v. Jackson Women’s Health Organization, the court will consider the constitutionality of Mississippi House Bill 1510, a ban on abortion at 15 weeks into pregnancy. The Mississippi abortion ban shockingly defies nearly 50 years of precedent following Roe v. Wade. In spite of unambiguous case law, Mississippi asks the court to overturn at least the core principle undergirding the right to legal abortion – that states cannot ban abortion prior to viability – if not to expressly overturn the right to abortion.
Mississippi’s brazen arguments have received less attention in light of the two challenges to another abortion ban that also dramatically flouts the rule of law, Texas Senate Bill 8. And perhaps for good reason, given the Supreme Court allowed the outrageous Texas ban to go into effect, causing immediate devastation in the state. But the truth is, abortion supporters are keenly aware that the decision in the Texas cases will likely focus on procedural questions about who can bring a challenge to the insidious law. The H.B. 1510 decision, however, holds in it the future of the right to abortion in Mississippi and in every state in this country.
The court’s decision to grant certiorari in this case came as a surprise to some, given the clear legal precedent, but it is no accident that two blatantly unconstitutional abortion bans are simultaneously before the court. Abortion rights are at a perilous crossroads due to a decades-long effort by abortion opponents to attack abortion access. This assault has come in attacks on Roe in courts, through legislation designed to bypass our Constitution – and in Texas, even to bypass federal judicial review – and in the purposeful manipulation of our democratic system, including gerrymandering state districts and engaging in systemic voter oppression.
In the last three years, anti-abortion efforts have intensified dramatically, both in numbers and in severity. Abortion opponents were emboldened following the confirmation of Justice Brett Kavanaugh to the Supreme Court, as he took the place of Justice Anthony Kennedy, who had repeatedly voted to uphold Roe. After the confirmation of Justice Amy Coney Barrett, which gives the court a solid majority of justices with anti-abortion records, abortion opponents went into overdrive. 2018, when abortion opponents passed 23 laws restricting abortion, to 2021: Abortion opponents have introduced nearly 600 abortion restrictions, so far passing more than 100.
S.B. 8 has provided a real time example of what happens when abortion is banned. In under three months, it has created an unprecedented public health crisis — the potential catastrophic harm for people seeking abortion in Mississippi, and nationwide, cannot be overstated. Following a decision gutting the constitutional right to abortion, states are poised to restrict abortion to the maximum. In amicus briefs, lawmakers from 35 states and 228 members of Congress have asked the court to overturn Roe. Any decision from the court that does less than strike down H.B 1510 and affirm longstanding precedent will only further embolden anti-abortion state lawmakers. The harm and chaos that we have seen in Texas would spread across the country, leading to a disastrous violation of our rights – and a devastating economic and social impact that will be felt for decades.
The National Women’s Law Center works on a range of gender justice issues, striving for equality in all our systems – schools, workplaces, homes, and in health care. We know abortion is a fundamental aspect of liberty and equality, a view the court also has shared. As the court has repeatedly affirmed, the right to abortion is firmly grounded in the rights of personal autonomy, bodily integrity, and freedom from government intrusion into what the Planned Parenthood v. Casey court called “the most intimate and personal choices a person may make in a lifetime.” Casey recognized the profound connection between one’s liberty and equality, and the right to abortion, which is critical to the ability of people who can become pregnant to “participate equally in the economic and social life of the Nation,” without discriminatory sex-based stereotypes about their capabilities or expected social roles. Being forced to continue a pregnancy jeopardizes bodily integrity and basic freedoms and also results in substantial health, economic, educational, and professional burdens, especially for those who work in low-paid jobs or live in poverty, who are disproportionately people of color. Eviscerating the right to abortion will also uniquely harm those who already face barriers to health care, including LGBTQ individuals, people in abusive relationships, people with disabilities, and young people.
In the face of evidence that denying abortion access will set back gender justice advances, Mississippi argues that progress for women over the last five decades means that freedom to determine whether or when they have children is no longer necessary. This argument ignores that economic, political, and social advancement for women came in part because of greater access to reproductive health care, including abortion. Nor does it consider the gender gaps that remain. Systemic barriers to contraception mean that people are unable to access the contraceptive care they need, and these barriers contribute to unintended pregnancies. Pregnant and parenting students and workers continue to face discrimination, job insecurity, loss of earnings, and diminished professional and educational opportunities. All of this is a stark reminder that the ability to determine whether to have children and when is a decision that is both deeply personal and also bound up in the ability to participate equally in our society and our economy. The S.B. 8 experiment is a stark reminder as to why the right to abortion is so vital, and more so in Mississippi, which utterly fails to provide the support to allow people to thrive during pregnancy or as parents.
This concern is not theoretical. We are at a pivotal moment for abortion rights and the decision before the court is deeply consequential. The right to abortion is essential and can define the outcome of one’s life. The court cannot allow H.B. 1510 to stand: Our liberty and equality are on the line.