How A Lawsuit From Mississippi’s Lone Licensed Abortion Clinic Led To The Supreme Court Case Of A Generation

In March 2018, Governor Phil Bryant (R-MS) enacted an abortion ban similar to those on the books in many European countries, saying that abortion clinics in Mississippi would be barred from aborting pre-born babies after 15 weeks of pregnancy. 

But the ban, called the Gestational Age Act, never went into effect — Jackson Women’s Health Organization, Mississippi’s only licensed abortion clinic, sued to stop it. 

“This is the way that they chip away at abortion until it goes away,” Jackson Women’s Health Director Shannon Brewer recently said of the law. “It’s 15 weeks, and then it’s gonna be 14 weeks, and then it’s gonna be 10. This is the way that they do it.”

The law wouldn’t have changed much, as the abortion clinic said it already did not perform abortions after 16 weeks of pregnancy. Even at its signing, Bryant did not view the 15-week ban as a final victory, but simply another step toward protecting the unborn. 

“We’ll probably be sued here in about a half hour, and that’ll be fine with me,” Bryant said. “It is worth fighting over.”

A clinic doctor immediately filed a lawsuit in a district court, accusing lawmakers of directly violating Roe v. Wade and other decisions that followed. According to Roe and subsequent cases, states must allow abortion up to the 24th week of pregnancy, or as the majority in Planned Parenthood v. Casey put it, the “point of viability.”

The district court granted the abortion clinic a temporary restraining order and then enjoined the state from enforcing the 15-week abortion ban, ruling that Mississippi did not prove an unborn baby is viable at 15 weeks, arguing based on the precedent set by Roe that the state could not ban abortion before viability.

The Fifth Circuit Court of Appeals agreed with the district court’s decision, leading Mississippi to petition the Supreme Court. In the state’s brief to the Court, the petitioners acknowledged the lower courts were required to strike down the 15-week abortion ban and pled with the court to review the precedent set by Roe and Casey. Their brief did not mince words: “Roe and Casey are egregiously wrong.” It was a direct challenge to the precedent set by the majority in the 1973 case. 

“Both courts below understood Roe and Casey to require them to strike down Mississippi’s Gestational Age Act because it prohibits (with exceptions for life and health) abortion after 15 weeks’ gestation and thus before viability,” the state wrote in its brief to the nation’s highest court. “Roe and Casey are thus at odds with the straightforward, constitutionally grounded answer to the question presented.” 

The state questioned whether the Supreme Court’s precedents set by Roe and Casey were constitutional and argued, “The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.” 

The Supreme Court agreed to take Mississippi’s case and began to hear arguments on December 1, 2021. From the outset of the hearing, the country knew of the potential ramifications of a decision on Dobbs v. Jackson Women’s Health Organization. “Feelings [ran] high,” SCOTUSblog wrote on December 1, as protestors gathered around the Supreme Court building while the justices listened to arguments.

Abortion supporters immedietly became nervous, and pro-life advocates saw a glimmer of hope. Conservatives had been longing for the court to overturn the infamous 1973 decision, and now the court tilted their way with six Republican-appointed justices, and at least three justices who clearly viewed Roe as unconstitutional.

Justice Clarence Thomas has not been shy with his view on the matter. “Our abortion precedents are grievously wrong and should be overruled,” he wrote in a 2020 dissenting opinion, adding, “The Constitution does not constrain the States’ ability to regulate or even prohibit abortion.”

For Justice Samuel Alito, his view on abortion goes all the way back to 1985, when he was a lawyer for the Justice Department. In a memo written by Alito, he said the government “should make clear that we disagree with Roe v. Wade.” 

Alito’s leaked draft opinion on Dobbs is confirmation that he continues to hold the same view on abortion he did more than 30 years ago. Roe “was egregiously wrong from the start,” Alito wrote in the leaked draft. However, the leaked majority opinion does not outlaw abortion or prohibit states from allowing the practice; it simply allows the issue to be decided at the state level. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives…This is what the Constitution and the rule of law demand,” he added.

The other three conservative justices were all appointed by President Donald Trump, who promised to only appoint those who would overturn Roe if given the opportunity. With the appointments of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, the court had five justices who liberals and conservatives viewed as threats to Roe. The perfect storm began to rage right before the court agreed to hear the case brought to them by Mississippi. 

Alarm bells from the pro-abortion crowd sounded just before the Supreme Court began its hearings on the case. Dobbs was a threat to them not only because it challenged Roe, but more practically, because dozens of states had laws on the books that would immediately ban or restrict abortion if Roe no longer protected the practice. 

As the court began its hearings on Dobbs, the pro-abortion Guttmacher Institute wrote, “By the time the Supreme Court hears oral arguments in the Mississippi case, there will be nine states with an abortion ban still on the books from before Roe v. Wade, 12 states with a trigger ban tied to Roe being overturned, five states with a near-total abortion ban enacted after Roe, 11 states with a six-week ban that is not in effect and one state (Texas) with a six-week ban that is in effect, one state with an eight-week ban that is not in effect and four states whose constitutions specifically bar a right to abortion. Some states have multiple types of bans in place.”

Another pro-abortion organization, the Center for Reproductive Rights, has been tracking which states would be “hostile” toward abortion if Roe were overturned. According to their map, nearly half of states have pre-Roe laws or “trigger bans” that would enact severe restrictions or outright bans on abortion should Roe fall. 

From the time the Supreme Court agreed to hear the case, Dobbs has posed as a threat to the nearly 50-year-long abortion protection given by Roe. Dobbs hasn’t just been another case before the court’s nine justices. It has been a looming verdict on a practice that defined America’s political atmosphere and culture wars for decades. 

The views expressed in this opinion piece are the author’s own and do not necessarily represent those of The Daily Wire.

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