NEW ORLEANS — Activists and concerned citizens on both sides of America’s generations-old battle over abortion have mobilized as a closely watched court case that could alter reproductive rights nationwide reaches a critical phase.
On Wednesday, the U.S. Supreme Court will hear arguments on the constitutionality of a 2018 Mississippi law that banned abortion procedures in the southern state after the first 15 weeks of a pregnancy.
How the conservative-leaning court rules could reinforce abortion rights across America or allow individual states to limit or potentially ban the practice.
In Mississippi, the epicenter of the case before the high court — Dobbs v. Jackson Women’s Health Organization — emotions are running high.
“I know women who have had abortions, and the decision is gut-wrenching for them,” said Matthew Burke, a Gulfport, Mississippi, resident who works for a nonprofit that rebuilds storm-damaged homes. “The decision is theirs to make, and now the supposedly highest court in the country might take away that right based on politics. It’s crazy.”
Many others disagree.
“The idea of taking a life, no matter how young, breaks my heart,” said Danielle Rodriguez from Jackson, the state’s capital. “I think there are extreme instances where maybe an abortion should be allowed, but this law can help save children’s lives.”
The Mississippi law at the center of Wednesday’s debate is the Gestational Age Act. Passed in March 2018, it was quickly blocked from taking effect by two federal courts that found the law to be unconstitutional. The Supreme Court will decide whether to uphold or reverse the decisions of the lower courts.
That the Supreme Court even agreed to hear this case concerns those who support abortion rights, according to Mary Ziegler, a legal historian and law professor at Florida State University.
“They didn’t have to take this case,” she said, pointing to the landmark Roe v. Wade Supreme Court decision of 1973 that set forth a constitutional right to abortion in America. “The Supreme Court could have done the same as the lower courts and said Roe v. Wade already settled this. Instead, they’ve agreed to hear arguments, which might mean they feel they have enough conservative justices willing to overturn or reinterpret that decision.”
A unique moment in time
In the 19th century, U.S. states began criminalizing abortions. Over time, more restrictive and punitive laws were adopted, eventually prompting Roe v. Wade, in which a woman successfully challenged a Texas state law that prevented her from obtaining an abortion.
Writing for the 7-2 Supreme Court majority in 1973, Justice Harry Blackmun noted “the sensitive and emotional nature of the abortion controversy” but concluded that “the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”
“In 1973, the Supreme Court set the line at fetal viability,” Ziegler noted. Viability refers to a fetus’ ability to survive outside the uterus. It has been generally believed fetal viability begins at approximately 24 weeks, or roughly six months.
“The court decided a state must allow access to abortions until that point. But that was a different court than this one,” Ziegler said, referring to the Supreme Court’s current 6-3 conservative majority. “(Former) President Trump nominated three conservative justices, and as a result, we haven’t had a Supreme Court this conservative in a very long time. It’s hard to guess what they’ll decide.”
Backing for Roe
Mississippi has been at the forefront of the debate since 2018 when the Gestational Age Act was passed. Billboards trying to sway public opinion line highways, while talk radio and social media have amplified the discourse.
Some hope the Supreme Court will follow the lead of the lower courts and find the act unconstitutional based on the precedent set by Roe v. Wade.
“I think the Supreme Court’s original finding that the right to an abortion is protected by the Fourth Amendment’s ‘right to privacy’ is the correct one,” said Evan Ash, a student living in Oxford, Mississippi. “I think any woman who wants an abortion should be able to get one. Let’s hope this court sticks with that thinking.”
Many of the act’s opponents worry it will endanger the lives of women. According to the Guttmacher Institute, a research group that supports abortion rights, the average distance a Mississippi woman would need to drive for an abortion would grow from 125 to more than 600 kilometers if the law goes into effect, as they would need to travel out of state to reach a clinic.
Ash believes women of color will be disproportionately impacted if the Mississippi law is upheld.
“Mississippi is the Blackest state in the country, and our public schools aren’t even allowed to teach proper sex education, only abstinence,” he said. “It’s this huge cycle that creates an inordinate amount of teen pregnancies and children that can’t be cared for, which creates more poverty.”
Ash added, “Without access to legal abortions, I’m worried women, desperate, will risk more dangerous methods (to terminate pregnancies).”
Rights of the fetus
Others argue for the rights of the unborn and for establishing those rights earlier in a pregnancy. While the case before the Supreme Court originated in Mississippi, it has prompted a deluge of television advertisements elsewhere in America, including the nation’s capital, where presumably the justices who will decide the case might watch them.
“By six weeks (in a pregnancy), we can detect a heartbeat with ultrasound technology. By 15 weeks, they (fetuses) can feel pain,” said an ad sponsored by the Susan B. Anthony List, a nonprofit anti-abortion group. “The scientific data that Roe v. Wade was based upon is antiquated.”
The ad, narrated by a physician who opposes abortion, continues, “The case going before the Supreme Court from Mississippi to place limits on late-term abortion is absolutely necessary. … We have a responsibility to stand up for the vulnerable and those who can’t speak for themselves.”
“The thing I think liberals get wrong about many of us that are pro-life is that we’re not against the woman carrying the baby,” said Jackson, Mississippi, resident Danielle Rodriguez. “We’re just passionately for protecting the baby they’re carrying.”
Ziegler doubts the Supreme Court will find the Gestational Age Act wholly unconstitutional.
“They’ve surprised us before, but why would they accept the case if they’re going to make the same decision the court made 50 years ago?” she wondered. “It’s likely some change is coming.”
Whether that change means a complete overturn of Roe v. Wade, reducing the time period in which states must allow access to abortions from 24 weeks to 15 weeks, or some other form of restriction remains to be seen.
Ziegler said the court might opt for incremental change now, setting the stage for a more sweeping transformation of reproductive rights in a future case.
“I think the justices are very aware of optics right now,” she said. “They prefer to be seen as above politics, but they understand they are being viewed cynically by many Americans at the moment. I wouldn’t be surprised if they were careful with this decision before they do something broader on abortion in years to come.”
Gallup polling earlier this year found 32% of respondents believe abortion should be legal in any circumstance, 19% believe abortion should be illegal in all circumstances and 48% believe abortion should be legal under certain circumstances. Such data fluctuates from year to year, but a nation divided on the question of abortion has remained constant.
Should the Mississippi law survive Supreme Court review, other Republican-led states stand ready to enact restrictive abortion laws. That America could one day have a patchwork of abortion laws that vary widely from one state to another does not bother abortion opponents.
“The Constitution is clear on the rights of the state(s) versus the federal government,” said Denver Mullican, a resident of Natchez, Mississippi. “These are decisions for the individual states to make with input from medical experts.”
“This isn’t an issue of state’s rights,” Ziegler countered. “This is an issue of human rights. If you believe access to abortion — even if it’s tied to some time frame benchmark — is a right women should have, then the Supreme Court is where this decision should be made.”