On Dec. 1, Supreme Court heard the arguments for the abortions rights case Dobbs v. Jackson Women’s Health Organization. At issue was the state of Mississippi’s law making abortions illegal after 15 weeks of pregnancy, well before the 24 weeks that is the standard of viability, which has been in effect since Roe v Wade was decided in 1973. Jackson Women’s Health Organization is the only health center providing abortions in Mississippi.
The Center for Reproductive Rights represented the Jackson Women’s Health Organization and U.S. Solicitor General Elizabeth B. Prelogar argued on behalf and in support of the clinic. Dobbs v. Jackson Women’s Health Organization is considered the most consequential reproductive rights case since the Planned Parenthood v. Casey ruling in 1992, which upheld Roe v Wade. The current case generated a flood of amicus, or friend of the court briefs, including from the American Bar Association, the American Medical Association and leading economists and social scientists that supported the constitutionality of Roe v Wade and described the harms that would result if it should be overturned.
Between The Lines’ Melinda Tuhus spoke with Jenny Ma, senior attorney at the Center for Reproductive Rights, who was part of the litigation team representing Jackson Women’s Health Organization in arguments before the Supreme Court.
JENNY MA: This law is a Mississippi 15-week ban on abortion. But focusing just on those facts – the Mississippi part and 15 weeks – is a mistake, because Mississippi went to the Supreme Court and asked the court to overrule Roe v. Wade entirely. In other words, they are asking that there be no right to abortion whatsoever.
So, Mississippi is asking the Supreme Court to just allow states to ban abortion entirely. And if the court upholds this law, it is overruling Roe and discarding the viability line, which I’m sure some of your listeners heard at the oral argument being discussed quite a bit, and saying that it’s okay to ban abortion prior to viability, and if that’s the case, there’s no real dividing line where the states could stop if the Court were to say that this law is constitutional. The only way it could do that is by overturning Roe v. Wade. The core holding of Roe and Casey is that the right to abortion is defined as the right of every woman to make the decision for herself until viability. And viability, medically, is around 24 weeks. That line has not changed in decades.
States can regulate abortion, and indeed they do and that’s why we’ve been at the Supreme Court so many times before. But the one thing states cannot do is ban abortion prior to viability because that is an individual right that belongs to the person themselves, rather than the government. So that’s the one thing the states can’t do.
And if the Supreme Court here says, yes, Mississippi can go ahead and ban abortion prior to viability because they themselves admit that 15 weeks is 9 weeks prior to viability, then the Court has overturned Roe v. Wade.
MELINDA TUHUS: Jenny Ma, I know some states have passed so-called trigger laws, which will enable abortion bans to go into effect as soon as the Supreme Court upholds the Mississippi law should it do so, while other states have enacted their own laws protecting the right to abortion, such as Connecticut, where I live. Can you talk about that?
JENNY MA: So, that is a part of our work as well, to make proactive gains, so that state legislatures actually protect the right to abortion. That can be done in various ways. Connecticut is one example. Most recently in Virginia, we were able to knock down some medically unnecessary barriers, so these are TRAP laws – Targeted Regulation of Abortion Providers – that are just placing incredibly burdensome restrictions on abortion providers, targeting them specifically with these laws. When presented with evidence, which there is so much, both medically, sociologically. We bring in economic experts, poverty experts, and so on – courts have deemed those laws to be unconstitutional. So that’s one way for states to protect abortion [rights]. Another way is for state legislatures to pass laws that protect access to care, like in your state. Then finally, there are state constitutions. So, the federal constitution is a floor, but not a ceiling.
So certain states – and I’ll just give your listeners the good news today – that Kansas, their state constitution has protections for abortion that are above the federal constitution and we actually were able to strike down several laws in the decision that was released today from Kansas state court. So there are several states, sometimes in the middle of the country like Kansas and Iowa, but then there’s proactive work that’s being done in New York, Colorado, Virginia and Connecticut, that is protective of abortion rights.
MELINDA TUHUS: How would a negative Supreme Court decision affect women’s ability to get mifepristone, the abortion pill?
JENNY MA: Well, medication abortion is available through abortion providers, and there are abortion providers now in all 50 states. So, medication abortion is available through various clinics. They are also available through mail order pharmacies, through the clinics or through another provider, and that is going to be specific by state regulations and rules, because some states that are particularly anti-abortion have things like waiting periods or in-person requirements for bias counseling and state-mandated information, so you’d have to get to the clinic to access medication abortion, but some states allow for more liberal laws in terms of mailing the medication abortion pill to their state.
MELINDA TUHUS: Would that change at all if the Supreme Court upholds the Mississippi law?
JENNY MA: So it would still be in many ways remain a state by state determination.
For more information, visit the Center For Reproductive Rights at reproductiverights.org.
