The State of Mississippi filed a brief with the Supreme Court on Thursday defending the state’s ban on abortion after 15 weeks of pregnancy and asking the court to overturn Roe v. Wade when it hears arguments on the case in the fall, raising the stakes of what was already set to be the term’s biggest reproductive rights case.
“The national fever on abortion can break only when this Court returns abortion policy to the states,” Mississippi Attorney General Lynn Fitch writes in the brief, arguing that the country has changed so much since Roe was decided that the court needs to reopen the issue.
“In 1973, there was little support for women who wanted a full family life and a successful career,” she wrote. “Maternity leave was rare. Paternity leave was unheard of. The gold standard for professional success was a 9-to-5 with a corner office. The flexibility of the gig economy was a fairy tale.”
When Mississippi asked the justices to take up the state’s case last June, however, the state emphasized there was no need to overturn the landmark abortion precedent or the court’s major refinement of that decision in 1992 in Planned Parenthood v. Casey.
“To be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey,” Fitch wrote then.
When officials from the Magnolia State brought the case to the high court last year, conservative justices outnumbered liberals, 5-4. But with the death in September of Justice Ruth Bader Ginsburg and the light-speed confirmation of Justice Amy Coney Barrett the following months, the court swung to a more lopsided, 6-3, conservative orientation.
In May, the court not only announced it would hear the Mississippi case, but the majority seemed to signal a willingness to revisit the basic framework of Roe v. Wade, writing explicitly that they wanted to hear arguments on whether states should be allowed to ban abortion prior to the point of fetal viability, which occurs around 24 weeks of pregnancy.
Still, many courtwatchers are doubtful that a majority of the court will explicitly overrule Roe. Instead, the consensus seems to be that the justices will allow more and more restrictions while stopping short of directly overturning the nearly half-century-old decision.
The Center for Reproductive Rights, which brought the challenge that blocked the Mississippi law, called the state’s new push for scrapping the landmark precedent “extreme and regressive,” warning in a statement: “Their goal is for the Supreme Court to take away our right to control our own bodies and our own futures—not just in Mississippi, but everywhere.”
When Mississippi enacted the law in 2018, it was part of a wave of Republican-leaning states passing bans on abortion as early as six weeks of pregnancy. All those laws have been blocked by lower courts, but could be allowed to take effect depending on how the Supreme Court rules on the pending case.
The high court has not yet announced when it will hear arguments in the Mississippi cases, but a decision is expected by next June or July, just months before the 2022 midterms in which both parties are expected to use the issue of abortion to turn out voters.