Let’s Review the Ridiculous Reasons Mississippi Said It’s OK to Overturn Roe v. Wade

Yesterday the Supreme Court heard arguments in a Mississippi case that could overturn the landmark abortion decision Roe v. Wade.

There was, arguably, no reason for the Supreme Court to take this case, except that the Court’s politics have changed and they’d like to overturn a landmark decision protecting abortion rights. There was no disagreement in lower courts—every one of them blocked the 15-week ban as unconstitutional. The state simply re-appealed the law to the high court after Justice Amy Coney Barrett was seated, which cemented a 6-3 conservative supermajority. When Mississippi asked the court to hear the case, they weren’t asking it to touch Roe, but when Attorney General Lynn Fitch filed the state’s brief in July, they threw in that it would also be nice to overturn Roe. (Even if the court doesn’t explicitly overturn Roe, upholding a 15-week ban is “tantamount to overruling Roe,” said Julie Rikelman, who argued the case for the Mississippi clinic.)

It’s extremely rich that Mississippi of all states is asking the court to overrule Roe, which would let its trigger law banning nearly all abortions go into effect and force most pregnant people to give birth. Mississippi has the highest infant mortality rate in the country and one of the highest maternal mortality rates and, despite knowing those facts, recently refused to extend postpartum Medicaid coverage beyond a pathetic 60 days after birth. As Justice Sonia Sotomayor noted, about 20 percent of women in Mississippi don’t have health insurance. There is no state minimum wage law, so it’s the federal floor of $7.25 an hour.

Here are some of the arguments Mississippi made in the state’s formal request to overturn Roe v .Wade, and which Supreme Court Justices regurgitated those arguments:

Safe-haven laws exist

Per the brief:

“But numerous laws enacted since Roe—addressing pregnancy discrimination, requiring leave time, assisting with childcare, and more—facilitate the ability of women to pursue both career success and a rich family life…And today all 50 States and the District of Columbia have enacted ‘safe haven’ laws, giving women bearing unwanted children the option of ‘leaving [the] newborn directly in the care of the state until it can be adopted.’”

Safe-haven laws mean people can surrender an unharmed newborn at a designated location—like a police station, fire house, or hospital—and not be prosecuted. Being able to relinquish a newborn after surviving nine months of pregnancy and childbirth is not a solution to being denied an abortion, but Justice Amy Coney Barrett, herself an adoptive parent, brought up this offensive argument not once but twice!

Pregnancy discrimination is illegal

Per the brief:

“Many laws (largely post-dating Roe) protect equal opportunity—including prohibitions on sex and pregnancy discrimination in employment (e.g., Pregnancy Discrimination Act (1978), see 42 U.S.C. § 2000e(k)), guarantees of employment leave for pregnancy and birth (e.g., Family and Medical Leave Act of 1993, see 29 U.S.C. § 2612), and support to offset the costs of childcare for working mothers (e.g., child-and-dependent-care tax credit, see 26 U.S.C. § 21).”

That’s right, Congress passed a law banning discrimination against pregnant people and all employers follow every law to the letter! And that employment leave through FMLA where you can’t lose your job is unpaid but, hey, you’ll figure out how to feed your baby and pay your rent!

Effective birth control is available

Per the brief:

“Even if abortion may once have been thought critical as an alternative to contraception, see Casey, 505 U.S. at 856, changed circumstances undermine that view. Policy can effect dramatic expansions in access to contraceptives. See, e.g., Laurie Sobel et al., The Future of Contraceptive Coverage 4 (Kaiser Family Foundation, Issue Brief, Jan. 2017), (“By 2013, most women had no out-of-pocket costs for their contraception, as median expenses for most contraceptive methods, including the IUD and the pill, dropped to zero.”)”

More people have access to birth control so no one needs abortion rights, Mississippi said, as if every person capable of pregnancy has true access and all methods of birth control have a zero percent failure rate. The reason fewer women paid out of pocket in 2013 was the coverage mandate under Obamacare, which the Supreme Court itself has gutted several times! And again, not every person capable of pregnancy in Mississippi—or the US—has health insurance.

Lots of other countries restrict abortion after the first trimester

Per the brief:

“The United States finds itself in the company of China and North Korea as some of the only countries that permit elective abortions after 20 weeks’ gestation. App.65a; see, e.g., Center for Reproductive Rights, The World’s Abortion Laws (2021), That is not progress. The time has come to recognize as much.”

Chief Justice John Roberts took this bait as well, noting that the US allowing abortions until fetal viability puts it in the company of China and North Korea. The claim that most countries restrict abortion earlier in pregnancy than the US does is technically true, but many of those same countries have strong safety nets including universal healthcare that covers birth control and abortion, several months of paid family leave, and childcare subsidies. It’s a totally disingenuous comparison.

Voters, not the courts, should decide abortion policy

Per the brief:

“The national fever on abortion can break only when this Court returns abortion policy to the States—where agreement is more common, compromise is often possible, and disagreement can be resolved at the ballot box [page 35]…Repudiating the rule of Roe and Casey would not itself bar a single abortion. It would simply let the people resolve the issue themselves through the democratic process. Indeed, many States have already accounted for Roe and Casey’s overruling: some by statutorily codifying the right endorsed in those cases or otherwise providing broad access to abortion…others by adopting restrictions that cannot stand under Roe and Casey but would take effect if they were overruled [page 46]”

First, 60 percent of Americans want Roe to remain in place and there is no state in the US where banning abortion is a majority position. And second, Republican-controlled states that have passed abortion bans are also home to such intense voter suppression and gerrymandering that it will be difficult for people to vote out anti-abortion lawmakers. It’s almost as if that’s by design.