Mississippi Attorney General Lynn Fitch filed her opening brief with the U.S. Supreme Court Thursday defending the constitutionality of her state’s 15-week abortion ban.
In defense of her state law, Fitch is also urging the Court to overrule its 1973 decision in Roe v. Wade.
The Court announced in May it will decide in the Mississippi case “whether all pre-viability prohibitions on elective abortions are unconstitutional” in the United States.
The question poses the most significant challenge since 1992 to the right to abortion created by the Supreme Court in Roe.
Fitch and Mississippi Solicitor General Scott Stewart stated in the brief:
Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational basis review that applies to all laws.
This case is made hard only because Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), hold that the Constitution protects a right to abortion.
Fitch and Stewart observed that much has changed in the nation since Roe was decided in 1973:
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. States should be able to act on those developments. But Roe and Casey shackle States to a view of the facts that is decades out of date.
Asserting that Roe and Casey “have proven hopelessly unworkable,” have “inflicted significant damage,” and are egregiously wrong,” Mississippi’s brief continued by stating that both decisions “are thus at odds with the straightforward, constitutionally grounded answer to the question presented.”
“So the question becomes whether this Court should overrule those decisions,” they continued. “It should. The stare decisis case for overruling Roe and Casey is overwhelming.”
The case will be argued in the fall, with a decision expected by June 2022.
The case is Dobbs v. Jackson Women’s Health Organization, No. 19-1392, in the Supreme Court of the United States.