Mississippi Attorney General gives sterling defense of state’s “Gestational Age Act” in brief filed with U.S. Supreme Court

By Dave Andrusko

For good reason, NRL News Today has written a boatload of stories about Dobbs v. Jackson Women’s Health Organization, the challenge to Mississippi’sGestational Age Act” which, with some exceptions, bans abortions after the 15th week.

Today Mississippi Attorney General Lynn Fitch filed her brief with the Supreme Court of the United States, “defending the right of the people to pass laws that protect life and women’s health and address legitimate interests of the State.” We will examine the AG’s brief in detail below.

Enacted in 2018, the law was blocked by Judge Carlton W. Reeves of the Federal District Court in Jackson, Mississippi. Judge Reeves’s decision was subsequently upheld by a three judge panel of the U.S. Court of Appeals for the 5th Circuit, although reluctantly by one of the three judges, as we explained 

On May 17, in a one line notice, the U.S. Supreme Court announced that the justices agreed to hear (“grant certiorari”) the appeal by the state of Mississippi.

The question before the High Court in Dobbs v. Jackson Women’s Health Organization is whether all prohibitions on abortions performed pre-viability are unconstitutional.

“But there is, of course, precedent in the Court’s jurisprudence for prohibiting abortions before viability,” said Jennifer Popik, J.D., federal legislative director for NRLC. “The 2003 Partial-Birth Abortion Ban Act banned a particular abortion procedure that was used both before and after what is considered viability. It was found to be constitutional by the U.S. Supreme Court in 2007.”

Popik noted, “The NRLC-led debate over partial-birth abortions broke new ground in the abortion debate and the constitutional finding by the Court clearly paved the way for future rulings.”  

In a press release accompanying her brief, Mississippi Attorney General Fitch highlights how the enormous changes in science, shifts in the culture, and tremendous improvements in pre-and post-natal care have outstripped the jurisprudence of Roe, decided in 1973, and Casey, handed down in 1992. She argues that the precedent set in these cases “shackle states to a view of facts that is decades out of date.”

Casey “recognized that Roe’s disregard for state interests had to be abandoned.” While “Casey tried to improve upon Roe by replacing strict scrutiny with the undue-burden standard, in practice, the undue-burden standard also “defeats important state interests rather than accounts for them.”

Early in her 49-page brief, Attorney General Fitch summarizes the weaknesses the High Court’s abortion jurisprudence in two sentences:

Roe broke from prior [Supreme Court] cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.

Roe and Casey have proven hopelessly unworkable. 

In calling for abortion policy to be returned to the states “where agreement is more common, compromise is more possible, and disagreement can be resolved at the ballot box,” Fitch maintains that “Abortion jurisprudence has placed this Court at the center of a controversy that it can never resolve. ”

And Roe and Casey have produced a jurisprudence that is at war with the demand that his Court act based on neutral principles. Abortion case law is pervaded by special rules—the undue-burden standard, the large-fraction test, and more—that feed the perception that “when it comes to abortion” this Court does not “evenhandedly apply[]” the law.

Attorney General Fitch concludes

By returning the matter of abortion policy to state

legislatures, we allow a stunted debate on how we support women to flourish. It is time for the Court to let go of its hold on this important debate.