The Precarious Future of Roe v. Wade: Texas and Mississippi

The anti-abortion movement, built over nearly fifty years, is closer than it has ever been to dismantling Roe v. Wade. This landmark ruling legalized abortion nationwide and prohibited states from banning abortion before fetal viability, around twenty-two to twenty-four weeks. Roe has improved the lives and health of women and families for decades by making services vastly safer and more accessible. It has also enabled women to participate more equally in the social and economic fabric of society.

The State of Abortion in Texas

In September, Texas enacted Senate Bill 8, the nation’s most restrictive abortion ban. This bill allows almost anyone to sue abortion providers or those who “aid and abet” an abortion after six weeks of gestation. The law, which makes no exceptions for pregnancies resulting from incest or rape, bars state officials from enforcement. Instead, it deputizes private individuals to sue any doctor, staff member, benefactor, or even rideshare driver who participates. Plaintiffs are entitled to $10,000 and covered legal fees if they win, while defendants are not granted the same resources. The unique formulation of the law makes it impactful and extremely difficult to challenge in federal court, because there is no single entity responsible for its enforcement.

Many barriers to abortion already exist in Texas, particularly for those without financial resources. After a restrictive 2013 law, only about 20 clinics remain in the state. Vulnerable groups most likely to be impacted tend to be those with lower incomes, communities of color, young individuals, and rural residents. The overturn of Roe would worsen these disparities in reproductive health. Texas, like many states across the South and Midwest, has chipped away at legal and practical access to abortion for decades. However, no Texas restriction has been followed by so steep a decline in legal abortions as Senate Bill 8. Abortions in Texas fell by half in September alone. Before the ban, 84% of people seeking abortions in Texas were more than six weeks pregnant. Research suggests about half of those unable to get abortions at clinics end up getting one another way, often by traveling to other states, acquiring the service beyond the confines of the medical system, or seeking self-managed abortions through medication obtained outside of Texas.

After a precarious five-to-four ruling, the Supreme Court refused to immediately block this Texas law, and agreed to fast-track their consideration of appeals while the challenge to the law remains pending in lower federal courts. More recently, on December 10th, the justices stated that abortion providers have the right to challenge the standing law in federal courts. However, the longer the ban remains in effect, the harder it is for Texas clinics to survive and for women to receive care.

This ruling comes within the context of the Supreme Court’s recent conservative shift after the addition of three members appointed by former President Donald Trump, who vowed to name justices prepared to overrule Roe. This includes Justice Brett Kavanaugh, who replaced Justice Anthony Kennedy, a cautious supporter of abortion rights, and Justice Amy Coney Barrett, who succeeded Justice Ruth Bader Ginsburg, a fierce lifetime advocate for reproductive freedom.

Attention Turns to Abortion in Mississippi

In 2018, Governor Phil Bryant of Mississippi signed into law a measure that would ban almost all abortions after fifteen weeks, with narrow exceptions for medical emergencies. Later that year, the law was blocked by the federal appellate court after the sole abortion clinic in the state, the Jackson Women’s Health Organization (JWHO), proved fetal viability to be impossible at fifteen weeks.

This year, the State of Mississippi filed a brief asking the Supreme Court’s newly expanded conservative majority to overrule Roe and sustain the law largely banning abortions after fifteen weeks. In November, the Supreme Court heard arguments, when conservative judges signaled they would be comfortable with upholding the Mississippi law despite its implications for overturning Roe and decades of precedent. Among many measures enacted by Republican-controlled state legislatures intended to test Roe’s durability, Mississippi’s Dobbs v. Jackson Women’s Health Organization may be one of the most important cases the Supreme Court has taken in decades.

Without access to abortion, women cannot have autonomy and fully participate in American life. Julie Rikelman, the attorney representing JWHO, said: “Casey and Roe were correct. 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.” She went on to say this is particularly true for vulnerable populations, including those who undergo a major health or life change during pregnancy as well as poorer women, who are twice as likely to experience delays accessing care.

The key question is whether Chief Justice John Roberts can attract votes from the other conservative justices for his narrower approach: one upholding the Mississippi law, but not overruling Roe entirely. Rikelman further emphasized that, without viability, there will be no stopping point, and states will rush to ban abortion at virtually any point in pregnancy.

After these arguments, it seems likely that the five conservative justices will vote to overrule Roe, and only the Chief Justice will seek a way to uphold the Mississippi law and not overrule Roe completely. Several months of deliberation will occur before a conclusion is drawn. This decision, however, has the potential to make abortion illegal in twenty-two states and counting, making it one of the most consequential abortion rights rulings in recent history. Fifty years of precedent have made a woman’s right to abortion not only the law of the land, but also deeply embedded in the fabric of women’s autonomy and equality in this nation.

About the Author: Sahar Tirmizi is a 2021 Tufts MPH Alum and Government Affairs Associate at Greater New York Hospital Association.

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