The Future of Abortion Rights Is the Future of Other Fundamental Rights

The sun was just up in Washington, D.C., and the plaza in front of One First Street was buzzing with activity. On the steps of the U.S. Supreme Court, Shannon Brewer, the longtime director of Mississippi’s only remaining abortion clinic, approached a lectern to talk to the growing crowd about the importance of abortion rights.

Wrapped in a gray coat against the morning chill, Brewer got choked up as she spoke. When she paused to catch her breath, a supporter called out from the crowd, “Take your time!”

“People don’t understand that women endure so much,” Brewer said. “You’re not going to tell me that I’m not smart enough to make a decision for myself. Nobody’s going to tell me that.”

Brewer lives in Jackson, Mississippi, and has run the clinic known as the Pink House for about a decade. The clinic serves pregnant people from all over the state, as well as those who come from across state lines; their numbers have increased dramatically in the wake of Texas’s near-total ban on abortion. That, in turn, has forced an increasing number of Mississippians to cross state lines in search of care. There are nearly 600,000 people of child-bearing age in the state, and even before Texas’s now-notorious Senate Bill 8 took effect, about half of Mississippi residents seeking abortion were already forced to travel out of state because of myriad obstacles to care that state lawmakers designed solely to frustrate access.

Brewer was in front of the Supreme Court in anticipation of the most consequential moment for abortion rights in nearly half a century: During oral arguments on December 1, her home state was asking the court to discard the constitutional right to abortion.

Pure Gaslighting

Nominally before the court on Wednesday was Mississippi’s law that bans abortion at 15 weeks, which is among a number of so-called gestational bans that states have passed in recent years. Under current Supreme Court precedent — which guarantees the right to abortion up to the point that a fetus is viable outside the womb, generally around 24 weeks of pregnancy — all of them are unconstitutional.

The right to abortion, advocates note, is firmly rooted in the right to individual liberty and equality guaranteed by the 14th Amendment, which the court itself has made clear.

“The right to control for yourself — including not to have a child — is implicit in the bodily autonomy and equality that was protected by the 14th Amendment,” Elizabeth Wydra, president of the Constitutional Accountability Center, said on Slate’s “Amicus” podcast. “How can you show up as an equal being in the public square if you cannot make fundamental decisions about your own reproductive capacity?”

Mississippi legislators passed House Bill 1510 in March 2018 precisely as a challenge to the right declared in Roe v. Wade in 1973, which was reaffirmed in later cases, including Planned Parenthood v. Casey in 1992. The Jackson Women’s Health Organization, represented by the Center for Reproductive Rights, quickly sued to block the law from taking effect, which district Judge Carlton Reeves did in a stinging opinion.

While research has demonstrated time and again that abortion is supremely safe, Mississippi argued that the measure was meant to protect women from its alleged harms. Reeves was not having it. The state’s “professed interest in ‘women’s health’ is pure gaslighting,” he wrote. “Its leaders are proud to challenge Roe, but choose not to lift a finger to address the tragedies lurking on the other side of the delivery room: our alarming infant and mortality rates.”

Mississippi’s record at protecting pregnant people, children, and families remains abysmal. The state has the highest rate of infant mortality in the country and among the highest rates of maternal mortality; those deaths are disproportionately high among Black women. And despite the plea of public health officials to take steps to counter this by extending postpartum Medicaid services — roughly two-thirds of births in Mississippi are paid for by Medicaid — state lawmakers have refused to do so.

Mississippi also has the highest rate of teen pregnancy among the 50 states, the highest rate of low-birth-weight babies, and the highest number of children living in poverty. It is tied with West Virginia for the highest number of children whose parents lack secure employment, according to the Annie E. Casey Foundation.

To Reeves, the state’s rankings exposed the lie of its professed compassion for women and concern about the alleged harms of abortion. “Legislation like H.B. 1510 is closer to the old Mississippi,” he wrote, “the Mississippi bent on controlling women and minorities.”

The state appealed, but the 5th U.S. Circuit Court of Appeals upheld the injunction. At the time, this wasn’t particularly surprising — even for the notoriously conservative 5th Circuit — because there was no doubt under Supreme Court precedent that a ban on pre-viability abortion was blatantly unconstitutional. To date, every single court that has considered a pre-viability ban has rejected it.

Nonetheless, Mississippi appealed the case, known as Dobbs v. Jackson Women’s Health Organization, up to the Supreme Court, where it sat for months. Then Justice Ruth Bader Ginsburg died last September, and the Trump administration rushed Amy Coney Barrett, a vocal foe of abortion rights, onto the court. For the first time since 1973, the court now has a 6-3 majority that disfavors abortion rights.

In May, the court finally said it would hear the case. And shortly thereafter, Mississippi changed its approach: Instead of solely asking whether all pre-viability abortion bans were unconstitutional, the state explicitly asked the court to overrule Roe and Casey.

A Fundamental Deprivation

Even before he was elected president, Donald Trump promised to stack the federal courts with judges who would vow to overturn reproductive rights. And he did so, including with his three picks for the Supreme Court: Barrett, Neil Gorsuch, and Brett Kavanaugh. Alongside the court’s existing conservatives — Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito — it was clear what they were there to do: insist that when it comes to pregnancy, people have no bodily autonomy.

On Wednesday, in his first appearance before the high court, Mississippi’s newly minted Solicitor General Scott Stewart — a former law clerk for Thomas who went on to serve in the Trump administration’s Department of Justice — played to the friendly bench. He opened dramatically: Roe and Casey “haunt our country. They have no basis in the Constitution, no home in our history or traditions. They’ve damaged the democratic process; they’ve poisoned the law,” he said. “Nowhere else does this court recognize a right to end a human life.” (He apparently forgot about the death penalty.)

Stewart argued that the court should take away the right to pre-viability abortion and allow individual states to decide where to draw the line. The 15-week ban at issue in the case would provide “months” for someone to decide what to do, he noted, and would further the state’s interest in protecting an “unborn girl’s life.”

Julie Rikelman, senior director of litigation at the Center for Reproductive Rights, who argued on behalf of the Jackson clinic, countered that the right to abortion was firmly grounded in the constitutional guarantees of the 14th Amendment, which has been repeatedly reaffirmed by the court.

“Mississippi asks the court to dismantle this precedent and to allow states to force women to remain pregnant and to give birth against their will,” Rikelman told the court. “For a state to take control of a woman’s body and demand that she go through pregnancy and childbirth, with all the physical risks and life-altering consequences that brings, is a fundamental deprivation of her liberty.” Any change to the standard would “propel women backward,” she said. U.S. Solicitor General Elizabeth Prelogar, who was there on behalf of the Biden administration, backed the clinic’s stance.

With those basic positions laid out, much of the nearly two hours of oral arguments were, at best, suffocatingly performative.

Gorsuch repeatedly interrupted Rikelman and Prelogar. At points, he flippantly suggested that doing away with the viability line might be fine. Various bans would go into effect that could each be challenged in court, he said — presumably by individual pregnant people.

Meanwhile, Barrett pointed out that if abortion rights were rescinded, pregnant people could still avail themselves of so-called safe haven laws. In other words, if the government were to force people to maintain a pregnancy they didn’t want, that didn’t mean they’d be forced into parenting; they would still have the option, after birth, of abandoning an unwanted infant at a fire station without fear of prosecution. Having to carry the pregnancy to term is “without question an infringement on bodily autonomy,” she said, but that happens in other contexts too, “like vaccines.”

Kavanaugh inexplicably lamented that the court was being asked to take sides on the issue of abortion — even though the decision to hear the Dobbs case was solely theirs. And he adopted a head-scratching tone as he wondered how the court could possibly determine whether a fetus or a woman had more rights under the Constitution. “You have to pick. That’s the fundamental problem. And one interest has to prevail over the other at any given point in time, and that’s why this is so challenging, I think.” Why should the court have to decide? he asked. Why couldn’t it be left to Congress or state lawmakers?

“Justice Kavanaugh, it’s not the right answer because the court correctly recognized that this is a fundamental right of women, and the nature of fundamental rights is that it’s not left up to the state legislatures to decide whether to honor them or not,” Prelogar responded.

Like many of his colleagues, Alito spent a lot of time on the question of stare decisis: the idea that the court should adhere to its precedents unless there is some special justification to depart from them. What that should mean is something more than just the changing makeup of the court and the fact that its judges now disfavor certain constitutional rights. But that wasn’t Alito’s position. His take was merely that Roe and Casey were wrongly decided, and when a ruling is “egregiously wrong,” that should untether the court from any fidelity to precedent.

Other justices seemed concerned about what a break with precedent would say about the legitimacy of the court and the rule of law. Justice Sonia Sotomayor pointed out that the sponsors of Mississippi’s H.B. 1510 “said we’re doing it because we have new justices.” After the 15-week ban was blocked by the lower courts, Mississippi lawmakers passed an even more restrictive six-week ban, outlawing abortion well before many people even know they’re pregnant. And again, Sotomayor pointed out, the bill’s sponsor “said we’re doing it because we have new justices on the Supreme Court.”

If the court were to throw out 50 years of precedent when there are no new facts that change Roe’s fundamental holding, Sotomayor said, how could the court retain its legitimacy? “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked. “If people actually believe that it’s all political, how will we survive?”

Stewart, the lawyer representing Mississippi, replied that to avoid the perception of being merely political, the court would have to “ground” its decision “in the Constitution, in text, structure, history, and tradition.”

“Casey went through every one of them,” Sotomayor said. “You think it did it wrong. That’s your belief. But Casey did that.”

Some people think Roe and Casey were wrongly decided and others don’t — and that’s always been the case, Justice Elena Kagan pointed out. So nothing has changed on that front, but there have been “50 years of decisions saying that this is part of our law, that this is part of the fabric of women’s existence in this country.”

Even so, Stewart said, the right should be rescinded, and states should be allowed to decide what happens next. If the court overturns Roe, according to the Guttmacher Institute, as many as 26 states are poised to immediately outlaw abortion.

All Rights on the Line

The court is unlikely to rule on the Dobbs case until next summer. But with Texas’s six-week ban currently in effect, we’ve already gotten a glimpse of what the future could look like.

While Texas’s ban is clearly unconstitutional under current law, the court allowed it to take effect because of the novel way it was written. Instead of giving state actors the power to enforce it, Texas lawmakers farmed out enforcement to vigilantes, empowering them to file civil suits against abortion providers they allege have violated the law by providing an abortion after six weeks. It also allows suits against those believed to have “aided or abetted” an illegal abortion — a friend who lends a patient money, for example, or gives them a ride to a clinic. Without a state actor to sue like the attorney general or a state health official, there was no clear way to challenge the law in court. The law was written explicitly as an end-run around the federal courts, and thus, constitutional oversight.

The results have been devastating, with patients in Texas scrambling to find care — a situation that has forced many to travel far beyond the state’s borders. That in turn has put pressure on clinics in other states, like Mississippi, that have been trying to absorb the influx, while still providing services to patients in their own states. If Roe goes away, this is the future.

Two months after the Texas law took effect, the Supreme Court finally heard arguments on whether there was a way for anyone to challenge its constitutionality. Texas was firm: There is not. This seemed to disturb several of the judges, who asked if Texas could avoid legal scrutiny of a law designed to eliminate abortion, a constitutional right it disfavors, what would stop another state from doing the same with some other right? Nothing, Texas’s solicitor general said; all rights would be up for grabs. The court has yet to rule on the case.

In some ways, Texas is correct: The right to abortion is not the only one currently on the table. If the Supreme Court rules that the Constitution’s promise of liberty and equality to all is predicated on 19th-century history and whatever state laws were when the 14th Amendment was adopted in 1868, then there are a whole lot of rights that are in trouble — including the right to use birth control, the right of adults to engage in consensual sexual activity, and the right to marry whom we choose.

Rikelman was clear about this during a press conference hours after oral arguments concluded. “The types of arguments that the state is making could absolutely be made against a host of other rights,” she said, “because the state is arguing that people’s liberty should be limited to the laws that were enforced in 1868.”

“That is just a very dangerous argument,” she added, and not one the Supreme Court has accepted to date. “It would mean that the historical discrimination against groups that were considered unequal in the 1800s, including women, would continue. And that cannot be true under our Constitution.”

Brewer, the clinic director in Jackson, was asked during the press conference what she thought would happen to women in Mississippi if the court overturned Roe. “That’s going to affect women everywhere,” she said. “But in Mississippi, where our health care is already the worst, our education is already one of the worst, you know, you can’t take stuff away from people and expect the situation to be better.”

“The same people who are taking these rights away from women are not even willing to help women to become better, to better themselves or to lift them up,” she continued. “You cannot expect a good outcome from this. And when it’s not a good outcome, when it’s worse, who’s going to raise their hand and take the blame for it?”