By Dave Andrusko
There has been so much hysteria, most of it artificial, about Mississippi’s Gestational Age Act that I fully expected news accounts of the brief filed by Mississippi Attorney General Lynn Fitch to be riddled with the same over-the-top responses. But taking just three (of many) examples, that proved not to be the case.
USA Today’s John Fritze, the Washington Post’s Robert Barnes and the New York Times’ Adam Liptak actually reported on the brief filed yesterday in which Fitch defended her state’s law which, with some exceptions, bans abortions after the 15th week.
You can tell instantly whether a story has a chance to be fair. How? It’s actually quite simple. Whether the other side (in this case, pro-abortionists challenging the 2018 law) is quoted extensively before the story addresses what AG Fitch actually wrote.
But in his first five paragraphs, Fritze lets us know the brief asks the justices to overturn Roe [“In their sharpest framing of the blockbuster dispute since the appeal was filed at the Supreme Court more than a year ago”]; that the 19 page brief is one of the early salvos in “an expected flurry of written arguments”; outlines in brief (although not entirely accurately) the collective impact of Roe and the 1992 Casey decision; and finishes up with a quote from the brief—“Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.”
Lots of other useful background information follows, as well as a quote from a statement issued by Nancy Northup, president of the Center for Reproductive Rights. In her famously understated way, Northup charged that Mississippi’s brief “reveals the extreme and regressive strategy, not just of this law, but of the avalanche of abortion bans and restrictions that are being passed across the country.”
Barnes’s story begins, “Mississippi is asking the Supreme Court to overrule Roe v. Wade in order to uphold the state’s restrictions on abortion access, and to renounce the court’s landmark holding a half-century ago that the Constitution protects a woman’s right to obtain an abortion.” (Barnes called it “The state’s bold request.”)
Two of the first six paragraphs includes quotes taken from AG Fitch’s brief.
“Roe and Casey are unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law — and, in doing so, harmed this Court,” the brief states.
“Nothing in constitutional text, structure, history, or tradition supports a right to abortion,” the brief states. And thus states should be free even to ban elective abortions so long as they show the prohibition promotes a legitimate government interest, Fitch writes.
What makes Barnes’ story so informative—and complete—is that he explains how the brief (in Barnes’s paraphrase) “says changes in society and science have undermined Roe.”
“Today, adoption is accessible and on a wide scale women attain both professional success and a rich family life, contraceptives are more available and effective, and scientific advances show that an unborn child has taken on the human form and features months before viability,” the brief states.
It dismisses the argument that reproductive control is essential to what Justice Ruth Bader Ginsburg once called “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
Instead, Mississippi’s brief says, “Innumerable women and mothers have reached the highest echelons of economic and social life independent of the right endorsed in” Roe and Casey.
Near the end, Barnes outlines about how the brief offers the High Court two options. If it chooses not to toss Roe and Casey
As an alternative, Mississippi said the court could reduce the heightened scrutiny that abortion laws must meet and find that Mississippi’s law meets legitimate objectives such as protecting the unborn, women’s health or the medical profession.
It could find that not all pre-viability abortions are unconstitutional, the state said, or that the 15-week restriction does not place an undue burden on a substantial number of women.
Third, and best, the first six paragraphs of Liptak’s story capture the core of Fitch’s argument, including something we wrote about yesterday:
She told the justices that the scope of abortion rights should be determined through the political process. “The national fever on abortion can break only when this court returns abortion policy to the states — where agreement is more common, compromise is often possible and disagreement can be resolved at the ballot box.”
Liptak also very helpfully adds near the end that “The precise question the justices agreed to decide” was “whether all pre-viability prohibitions on elective abortions are unconstitutional.”
He explains, “Depending on how the court answers that question, it could reaffirm, revise or do away with the longstanding constitutional framework for abortion rights.”