Shannon Brewer was not ready for the news that came out of the U.S. Supreme Court Monday morning. The justices had decided to accept an appeal from Mississippi that seeks to enforce a ban on abortion after 15 weeks gestation — the first outright ban that the high court has considered since Roe v. Wade, the landmark case that legalized abortion in 1973. “All morning I’ve been thinking about what this means for our patients and what this means for women,” Brewer said. “I can honestly say today that it really has, for a lack of better words, pissed me off.”
Brewer lives in Jackson, Mississippi, and is the longtime director of the Jackson Women’s Health Organization, the state’s only remaining abortion clinic, which is commonly referred to as the Pink House because of its bright exterior paint job. The clinic serves pregnant people from all over Mississippi as well as those who come from across state lines. The clinic is always busy. There are nearly 600,000 women of child-bearing age in Mississippi and about half of the residents who seek abortion care are forced to travel out of state for access.
Patients who come to JWHO have to navigate a byzantine maze of obstacles erected by state lawmakers. Though legislators often claim these restrictions are needed to protect women, the truth is that they are passed solely to make abortion access as difficult as possible. In Mississippi, people seeking care have to make at least two trips to the clinic. First, the state mandates they receive in-person “counseling,” which is coercive by design and ripe with inaccurate medical information. Then, after a 24-hour waiting period the state says is necessary for patients to grapple with their decision, they can return to the clinic for their abortion. There is also a forced ultrasound law and a ban on the use of telemedicine for medication abortion, among a host of other restrictions.
Indeed, the case, Dobbs v. Jackson Women’s Health Organization, which was filed in the Supreme Court last summer, has the potential to topple abortion rights across the country. “The stakes here are extraordinarily high,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which represents JWHO in the lawsuit. “The court cannot uphold this law in Mississippi without overturning Roe’s core holding.”
Mississippi legislators passed House Bill 1510 in March 2018, banning abortion after 15 weeks except in rare circumstances, precisely as a challenge to Roe v. Wade. The law was blocked by federal district Judge Carlton Reeves in a pointed, stinging opinion. While research has demonstrated time and again that abortion is supremely safe, the state argued that the measure was meant to protect women from the alleged harms of abortion later in pregnancy. 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 maternal mortality rates.” Maternal mortality in the state has remained startlingly high, particularly for Black women. “No,” Reeves continued, “legislation like H.B. 1510 is closer to the old Mississippi — the Mississippi bent on controlling women and minorities.”
Core to the holding in Roe and the Supreme Court’s subsequent 1992 decision in Planned Parenthood v. Casey is that pregnant people have the right to decide whether to continue or terminate a pregnancy before it is viable outside the womb, generally accepted to be around 24 weeks. With that central framework, Reeves blocked the Mississippi law from taking effect. “There is no legitimate state interest strong enough, prior to viability, to justify a ban on abortions,” he wrote.
When it passed, Mississippi’s 15-week ban was the most restrictive in the country. Since then, even more draconian bans have proliferated, including in Mississippi. While H.B. 1510 was tied up in litigation, lawmakers returned to the state Capitol in 2019 to pass a law that would ban abortion at six weeks, long before many people know they’re pregnant. (“Here we go again,” Reeves would write in blocking that ban.)
Twelve states — Alabama, Arkansas, Georgia, Kentucky, Louisiana, Montana, Missouri, Ohio, Oklahoma, South Carolina, Tennessee, and Utah — have since enacted pre-viability bans. Each has been blocked by the courts. That hasn’t stopped additional states, like Texas, from aiming to join their ranks. Currently, 11 states, including Mississippi, also have a so-called trigger law on the books, a statute that would criminalize abortion in the event that Roe v. Wade is toppled.
According to the Guttmacher Institute, lawmakers in 46 states have introduced more than 500 abortion restrictions since January, including 146 abortion bans. So far, 61 of those restrictions have passed in 13 states, including eight bans, making 2021 the most hostile year for abortion rights in a decade.
You Should Be Scared
Despite the onslaught, the federal courts have consistently deemed these measures unconstitutional and have blocked them from taking effect. The 5th U.S. Circuit Court of Appeals, which handles cases out of Mississippi, Louisiana, and Texas, and is considered one of the most conservative courts in the country, has done so as well. It too blocked Mississippi’s 15-week ban, which teed up the case for the state to pitch it to the Supreme Court for consideration. Until this week, the Supreme Court had declined to take this kind of bait; in 2016, it rejected appeals from North Dakota, which wanted the court to revive the state’s six-week ban, and from Arkansas, which was seeking to enforce a 12-week ban.
Dobbs was pending before the Supreme Court for about nine months. And it seemed to be a no-brainer, at least at first, that the court would decline to accept it — after all, the ban is counter to the promise of reproductive autonomy in pre-viability pregnancy contained in nearly 50 years of precedent. But then Justice Ruth Bader Ginsburg died, and Republicans rushed through the confirmation of Justice Amy Coney Barrett, a noted foe of abortion rights, cementing a 6-3 conservative supermajority on the bench. Since early September, the court rescheduled its deliberations on whether to take the Dobbs case nine times. The justices considered the appeal 13 different times during their regular conference sessions this year.
Exactly why the case was brought up and set aside so many times without a decision is something of a mystery. Florida State University College of Law professor Mary Ziegler, a legal historian who has written extensively about abortion, said there are a couple schools of thought, including that “the court was hesitating because what it was going to do was about to be a big deal.” And it’s hard to understate what a big deal it is. “If you’re a supporter of abortion rights, you should be scared,” Ziegler said.
Mississippi had asked the court to answer three questions, including whether abortion providers could sue to vindicate the rights of their patients, a concept known as third-party standing, which conservative members of the court have in their sights. But the court dismissed that, as well as a second question related to the standard of review for certain abortion cases. Instead, it granted review of the case based on a single question: whether all bans on pre-viability abortion are unconstitutional.
This question is incompatible with Roe and Casey. While Casey allowed for some restrictions on abortion access — a window through which hundreds of worthless restrictions have passed, creating large swaths of the country where abortion access is difficult at best — it affirmed the right to pre-viability abortion.
“The court could say fetal pain today and a heartbeat tomorrow, or fertilization the day after.”
But the viability standard was always something of a random line drawn in the sand, and over the years, supporters of reproductive rights haven’t “spent a lot of time defending viability as a standard,” said Ziegler. Meanwhile, lawyers representing the anti-abortion position have long strategized around this. “There’s been a reversal strategy since the ’80s that’s partially to do with viability,” she said. “These people are brilliant chess masters. The smart ones are playing the long game.”
In part, that means teeing up as many options as possible for restricting or even overturning abortion rights. “Usually what they do is give the Supreme Court a whole bunch of options,” Ziegler said. “If you feel like overturning Roe on A, B, C, it’s like ordering food at a restaurant, you know? ‘What do you feel like today?’ So this has totally been in the works for a long time.”
Mississippi’s 15-week ban provides one of those options. In addition to being sold as a measure to protect women’s health, the bill was also portrayed as a way to prevent fetal pain. To date, 17 states have laws on the books banning abortion at 20 weeks postfertilization based on the unscientific assertion that this is the point at which a fetus can feel pain, despite the fact that the prevailing science relied upon by doctors is that the ability to feel pain doesn’t develop until closer to 30 weeks. Mississippi’s law is an outlier, raising the specter of fetal pain far earlier, but it may also provide the court a road map to say that there are legally acceptable reasons for a state to ban abortion before viability.
Ziegler says that the question of fetal pain is something of a “sleeper issue,” but it could become dispositive. If the court allows the long held pre-viability standard to be eroded, then there’s very little left to Roe and Casey. “The court could say fetal pain today and a heartbeat tomorrow, or fertilization the day after.”
The viability standard is the one aspect of abortion law that the courts have not tinkered with over the years, Ziegler said. Messing with that standard now would deal a crippling blow to the legal precedent for abortion — making the right to abortion that much easier to eliminate. Ziegler has spent a good amount of time on Twitter explaining the peril of this moment. If viability isn’t the standard, she asked, “What is the limit on bans? Is there a limit on bans?” The answer, it would seem, is likely no.
Taking Us Backwards
Like Brewer, Kim Gibson was startled by the news that the court had decided to take the Dobbs case. Not that she was surprised — she kind of figured this was coming — but she wasn’t expecting it on this particular day. “I just wasn’t feeling it this morning,” Gibson said on Monday. “And I’m like, oh great, today, of course you did it today.”
Gibson is a veteran patient escort at the Jackson Women’s Health Organization, a so-called Pinkhouse Defender. It’s a frustrating but necessary job. The clinic sits on a busy corner in Jackson’s artsy Fondren neighborhood and regularly attracts dozens of loud and aggressive anti-abortion protesters. They bring large signs with images of aborted fetuses on them and try to hand out leaflets full of misleading information (if not outright lies) to arriving patients. They’ve even set up ladders on the sidewalk so that they can look onto the property and yell at patients as they come and go, often with a bullhorn. Defenders like Gibson do whatever they can to shield patients from the harassment.
Historically, Gibson said, the protesters were more aggressive when Democrats were in control in Washington, D.C. That script was flipped when Donald Trump took office; it seemed that the administration’s hostility toward reproductive rights emboldened them further, she said. “If anything, they ramped up … to be more of themselves than they already were.”
Now, with the Supreme Court’s announcement that it will hear the Dobbs case in the next session, which begins in October, Gibson thinks it’s possible the situation outside the Pink House could get worse. “It’s not been great out there,” she said. “This will probably pump them up further: ‘We’re going to win! We’re going to win!’”
By mid-afternoon on May 17, just hours after the Supreme Court’s announcement, a few calls had started coming into the clinic. Brewer said that as the week goes on, the calls will increase. “Once everyone starts getting the news,” she said, “we will start getting the calls.” This happens every time the state takes a shot at abortion access. “Most people are thinking when they see it that we are closed immediately,” she said. “The women kind of go into panic mode, wondering if they’re going to be seen.”
Brewer worries not only about her patients but also about women across the country. According to the Center for Reproductive Rights, if Roe were to fall, there are 24 states poised to ban abortion. “It’s nerve-wracking because every time something like this happens, it’s proven to us that people still don’t think that a woman can make a fundamental decision about herself and her body,” Brewer said. “It’s just going to hurt women. It’s taking us backwards and that’s what’s frustrating for me: I know it’s taking us backwards. And it’s not going to be good for anyone.”
This content originally appeared on The Intercept and was authored by Jordan Smith.