By Jack Phillips
Mississippi’s attorney general asked the U.S. Supreme Court on Thursday to overturn the landmark abortion decision Roe v. Wade and argued that the practice shouldn’t be considered a constitutional right.
“The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,” Attorney General Lynn Fitch, a Republican, told the nine justices in a new court filing.
The high court in May agreed to hear Mississippi’s appeal of a 2019 court ruling striking down a state law that prohibited abortions after the 15th week of pregnancy. That case—Dobbs v. Jackson—is expected to be argued when the Supreme Court’s term starts in October.
In the brief, the Mississippi attorney general noted that the Constitution’s text doesn’t mention abortion and said adhering to the 1973 decision is “dangerously corrosive to our constitutional system.” The Supreme Court at the time ruled that abortion could be legalized prior to viability, which is generally the 24th week of pregnancy.
The initial brief filed by the state, filed in June of last year, argued that the state’s Gestational Age Act complied with existing legal precedent and suggested Roe v. Wade should be overturned if the Supreme Court could come up with no other way to uphold Mississippi’s law.
Thursday’s court brief, however, appears to recast that argument and now targets Roe v. Wade itself and a 1992 follow-up Supreme Court decision—Planned Parenthood v. Casey.
“Abortion is fundamentally different from any right this Court has ever endorsed,” Fitch wrote. “No other right involves, as abortion does, ‘the purposeful termination of a potential life.’” She added: “Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.”
“Heightened scrutiny of abortion laws can never serve those aims,” the attorney general added, “because the Constitution does not protect a right to abortion, it provides no guidance to courts on how to account for the interests in this context.”
Regarding policy reasons for abortion, Mississippi argued that times have changed since 1973 and 1992, respectively. The attorney general noted that in recent years, scientific advances have shown that an unborn child has taken on the human form before viability, and alternatives including adoption and contraceptives are more readily available than ever.
“The march of progress has left Roe and Casey behind,” the brief states. “Those cases maintained that an unwanted pregnancy could doom women to ‘a distressful life and future,’ that abortion is a needed complement to contraception, and that viability marked a sensible point for when state interests in unborn life become compelling.”
Conservatives for decades have fought against Roe v. Wade, which recognized that a constitutional right to personal privacy protects a woman’s ability to get an abortion. The court in its 1992 decision reaffirmed the ruling and prohibited laws that place an “undue burden” on a woman’s ability to obtain an abortion.
Abortion opponents are hopeful the Supreme Court will narrow or overturn Roe v. Wade. The court now includes the addition last year of Republican President Donald Trump’s third appointee, Justice Amy Coney Barrett. She replaced Justice Ruth Bader Ginsburg, a longstanding proponent of abortion, in September.
An opposing brief from the Jackson Women’s Health Organization, Mississippi’s only abortion clinic, is due by Sept. 13. The clinic previously argued that 50 years of precedent and court rulings have established Roe v. Wade’s viability.
“Before viability, the State’s interests, whatever they may be, cannot override a pregnant person’s interests in their liberty and autonomy over their own body,” the clinic wrote last year.
Reuters contributed to this report.