On May 17, the Supreme Court announced it will hear Mississippi’s appeal of an appellate court decision that threw out the state’s law banning abortion after 15 weeks of pregnancy in the case, Dobbs v. Jackson Women’s Health Organization.
The Supreme Court has ruled on a number of abortion cases since Roe v Wade was decided in 1973, chipping away at that historic ruling for abortion rights in various ways, but the high court’s rulings have continued to guarantee the bedrock right of a woman to end a pregnancy. Now, with conservative justices having a 6 to 3 majority on the court, the threat of overturning Roe v Wade is very real. Many states have passed laws protecting abortion rights, while others have laws that would trigger an immediate ban if and when the Supreme Court overturns Roe.
Between The Lines’ Melinda Tuhus spoke with Hillary Schneller, senior staff attorney at the Center for Reproductive Rights and lead attorney on this case. Her organization will be arguing against the Mississippi statute when the court takes up the case, most likely this fall. She says her group has joined with many others concerned about the future of reproductive health rights to fight this case.
HILLARY SCHNELLER: This is a direct challenge to Roe v. Wade. The law at issue is a Mississippi law that bans abortion after 15 weeks of pregnancy, which is well before viability. So that directly flies in the face of the core holding of Roe, which has been reaffirmed time and time again, including in the 1992 decision in (Planned Parenthood of Southeastern Pennsylvania v.) Casey. To be frank, there are really two outcomes here: The court can uphold this law and in doing so, it is essentially overturning Roe. And the other option is to affirm the lower court, strike down this law and thus reaffirm Roe. So it’s hard to see what middle ground the court can craft here, given that this law presents a direct challenge to Roe.
MELINDA TUHUS: So if Roe is overturned, the issue of abortion moves to the states, right?
HILLARY SCHNELLER: You’re right that if the Court takes the dramatic and drastic path of overturning Roe, that would send the question of the right to abortion to the states. The point of the Constitution is that’s not what’s supposed to happen, that it shouldn’t matter in what state you live: You’re guaranteed this basic right to decide whether to continue a pregnancy. If Roe were overturned, about half the states would immediately move to prohibit abortion outright, and that’s again not how our fundamental rights are supposed to work. So, Congress already has in front of it an opportunity to pass a bill that would guarantee the right to abortion across the country, the Women’s Health Protection Act, so that is certainly an option for Congress to do regardless of what happens in this case.
MELINDA TUHUS: Can you say a little more about that bill?
HILLARY SCHNELLER: Sure. So the Women’s Health Protection Act is a federal bill that would protect against medically unnecessary bans and restrictions, like the one at issue in Mississippi. It would guarantee the right of providers to provide, and people to access, abortion free from medically unnecessary interference that we’re seeing, year after year, from the states. It has not passed either house yet, but I believe it has a number of co-sponsors and will certainly be getting a lot more attention this year given the stakes at issue in the Mississippi case.
MELINDA TUHUS: Hillary Schneller, can you talk about both the states that have passed protections and the states that have passed bans that would go into effect if Roe is overturned?
HILLARY SCHNELLER: Sure. So, I think this directly speaks to the patchwork that would continue to exist if Roe were overturned. We’re already seeing a patchwork of people’s rights, but without Roe that would get much worse. About 23 states have protections for abortion rights already enshrined in their constitution or in state statutes. And that means that people in those states are protected, regardless of what the Supreme Court does in this case or with abortion rights more generally. On the other side, as I mentioned, the other half of states would likely move to prohibit abortion if Roe were overturned, and 11 states already have what are called trigger bans, which are laws that are intended to ban abortion essentially immediately if Roe is overturned. Mississippi is one of those states. The Texas legislature passed a trigger ban just this week and it will be sent to the governor very soon, so (it’s) another state that is anticipating what it would like to do if Roe was overturned.
MELINDA TUHUS: Can you say anything about who will be most affected should Roe be overturned, or who’s being affected already?
HILLARY SCHNELLER: We certainly know that restrictions and bans have an incredibly disproportionate impact on people who are already facing systemic barriers to health care: Black people, indigenous people, other people of color, LGBT people and people with disabilities already face incredible challenges to accessing basic health care. We’re talking about this case in the middle of a global pandemic, which is causing further barriers and delays for everyone accessing health care, and certainly including patients accessing abortion care. So without the protections of Roe, there is, of course, incredible concern that all of those barriers will only get worse than they already are.
For more information, visit the Center for Reproductive Rights at www.reproductiverights.org.