Attorney General Lynn Fitch of Mississippi made nationwide news last week when she asked the Supreme Court to overturn its two leading precedents on the right to abortion, Roe v. Wade and Planned Parenthood v. Casey. I was puzzled by the treatment of this filing as news, unless the news was that a state finally came clean with the court and told the justices what it really wanted them to do.
After all, back in May, when the court agreed to hear Mississippi’s appeal of a decision that struck down its ban on abortion at 15 weeks of pregnancy, it was perfectly obvious that if Mississippi’s Gestational Age Act were to be upheld, the two precedents would have to go. That’s because a fetus at 15 weeks is at least two months shy of viability, and both Roe and Casey give women an absolute right to terminate a pregnancy before the fetus is viable. The 1992 Casey decision authorized states to place an onerous and expensive obstacle course in a woman’s path, but nonetheless, the ultimate decision to terminate a pregnancy before fetal viability remained hers to make.
Permitting a state to ban abortion at 15 weeks — or at six, as in Texas, or at just about any old time, as in a new Arkansas law, temporarily blocked last week by a federal district judge, that purports to ban nearly all abortions — is inconsistent with nearly 50 years of Supreme Court jurisprudence.
In the Supreme Court petition Attorney General Fitch filed in June 2020 (that is not a typographical error; it took the justices 11 months simply to decide to hear the case), she was coy about what she was really asking. “To be clear,” she told the court, “the questions presented in this petition do not require the court to overturn Roe or Casey.” She did concede, but only in a footnote, that the case might prompt a more conclusive outcome: “If the court determines that it cannot reconcile Roe and Casey with other precedents or scientific advancements showing a compelling state interest in fetal life far earlier in pregnancy than those cases contemplate, the court should not retain erroneous precedent.”
The tone is completely different in the state’s brief on the merits, filed last week in advance of the argument the court will hold this fall. “Roe and Casey are egregiously wrong,” Ms. Fitch asserts. The case for overturning them is “overwhelming.” The two precedents have not only “proven hopelessly unworkable,” but “have damaged the democratic process, poisoned our national discourse, plagued the law — and, in doing so, harmed this court.”
What might account for such a dramatic change in Mississippi’s statements? One reason that jumps to mind is that the court that will decide this case is not the court Attorney General Fitch needed to persuade when she first approached it last summer. There’s little doubt Justice Ruth Bader Ginsburg’s death last September and her replacement by Justice Amy Coney Barrett has flipped the court on abortion, at least to some extent. It’s hard to remember that it was only last summer that Chief Justice John Roberts added his vote to those of what were then four liberal justices to strike down Louisiana’s law requiring hospital admitting privileges for doctors who perform abortions. If there was a strategic reason to mince words in a petition filed then, there is none now.
Granting all that, I have a different take on Mississippi’s brief. I don’t actually read it as a conventional legal document, if the definition of such a document is a piece of writing intended to persuade a court. Those Supreme Court justices who have lived their adult lives in opposition to Roe v. Wade hardly need to be informed by a state attorney general that the case was wrongly decided. The brief is a political document intended for political consumption.
Lynn Fitch, 59, is the first woman to be Mississippi’s attorney general and the first Republican to hold the office since Reconstruction. She is an ambitious politician sometimes mentioned as a future governor. There’s nothing to apologize for in that; I have never known a state attorney general who wasn’t aiming for higher office. But it’s hard to escape the feeling that she intends Dobbs v. Jackson Women’s Health Organization to catapult her into the statehouse.
Two years ago, as state treasurer, she won the Republican nomination for attorney general in a three-way primary in which the main issue was which of the candidates could claim to be the most conservative.
“I’m an original Trump supporter,” Ms. Fitch proclaimed on the stump. “I have a relationship with our president, and you can count on me to work with our president to stand strong, to fight illegal immigration, build that wall and also to stop the assault on our Christian values.”
I don’t know, but can only suspect that she took some after-the-fact heat at home for not having made a more full-throated call to overturn Roe in her initial Supreme Court petition.
With Mississippi’s cards now on the table, the question is whether the state’s brief makes it more likely that the court will actually overturn Roe and Casey. While alarmed responses to the brief from leading abortion-rights organizations suggested that the answer should be yes, I have a different view. Chief Justice Roberts has often seemed attracted to what some scholars call “stealth overruling” — decisions that undermine a precedent to the point of collapse without actually pushing it over the edge. (Justice Antonin Scalia, who died in 2016, used to taunt the chief justice for engaging in what he scathingly labeled “faux judicial modesty.”
What Mississippi’s brief has done is make it impossible for the court to place any kind of fig leaf over a ruling in the state’s favor. To uphold a pre-viability abortion ban is to overturn Roe v. Wade and Planned Parenthood v. Casey. It’s that simple. And for once, a state is saying yes, that’s exactly what it wants.
Does that mean the court is less likely to take that step? I’m under no illusions. The court will do what it will do, which is to say whatever it has five votes for. But at least there is now a better chance that the public will understand what that is.
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