Lawyers for the state of Mississippi on Thursday asked the Supreme Court to overturn Roe v. Wade, calling it a harmful decision that has damaged the Court and the Constitution.
The state filed the brief in advance of a major abortion case the justices will hear later this year. Mississippi is defending a ban on abortions after 15 weeks against a legal challenge from its sole abortion clinic. The state mounted a frontal assault on the Court’s abortion precedents in Thursday’s filing, arguing they have no basis in the Constitution and bind the justices to a perennial conflict.
“Abortion jurisprudence has placed this Court at the center of a controversy that it can never resolve,” the state’s brief reads. “And Roe and [Planned Parenthood v.] Casey have produced a jurisprudence that is at war with the demand that this Court act based on neutral principles.”
The move raises the stakes of the Mississippi case, which already had the makings of a landmark dispute. Pro-choice forces denounced the state’s brief and said it was a component of an extreme and well-planned strategy crafted by red states and their pro-life allies.
“Mississippi just said the quiet part out loud,” Planned Parenthood Action said in a statement. “This was always their end game: to have the Court overrule 50 years of precedent and allow states to ban abortion.”
The state said legal and medical developments have eroded assumptions at the foundation of Roe and other cases. Advances in neonatal medicine have shown unborn children take on human aspects at earlier points than the Roe Court understood, the state said, while fetal viability continues to move to earlier phases of pregnancy. Apart from obstetrics, laws that ban pregnancy discrimination, guarantee leave time, and assist with child care undermine Roe’s assumption that unplanned pregnancy forces women into “a distressful life and future,” Mississippi said.
“Roe and Casey shackle states to a view of the facts that is decades out of date,” the brief reads.
The state also said social reliance on abortion access is no reason to maintain Roe. Abortion rights are a perennially contested topic, the state said, and the High Court’s abortion precedents have been subject to correction and revision through the years.
“The legitimacy, limits, and policy responses to this Court’s abortion cases have been contested continuously for five decades. This too saps any claim that reliance interests support Roe and Casey,” the brief reads.
Leading pro-life groups hailed Mississippi’s brief as a welcome development and argued the state’s ban would bring the United States in line with abortion access rules in other developed countries.
“Mississippi’s pro-life law reflects science and international norms and we’re eager to see the Court catch up,” said Susan B. Anthony List president Marjorie Dannenfelser. “By 15 weeks, they have fingers and toes, fully formed noses, lips, eyelids and eyebrows. They are clearly human, and they feel pain. Most European nations limit late-term abortion by this point.” She elsewhere called the brief “masterful.”
The Jackson Women’s Health Organization will file its own legal papers, which are due on Sept. 13. The case is No. 19-1392 Dobbs v. Jackson Women’s Health Organization.
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