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As the battle over Texas’ law that effectively bans abortions six weeks into pregnancy plays out in the courts, advocates on both sides are closely watching a highly anticipated Mississippi case heading to the U.S. Supreme Court.
Anti-abortion advocates see an opportunity for the conservative-leaning high court to overturn Roe v. Wade, allowing Texas to end the practice outright. But reproductive rights groups are holding out hope that the court affirms abortion rights in a way that overrides elements of Texas’ new law.
Mississippi passed a law in 2018 attempting to prohibit all abortions after 15 weeks, challenging Roe v. Wade’s landmark 1973 decision that legalized the procedure nationwide before fetal viability, which is around 24 weeks of gestation. The state law never went into effect because a federal appellate court blocked its enforcement.
Courts haven’t blocked Texas’ more restrictive law in the same way, because the state doesn’t enforce it. Instead, the law relies on private citizens to enforce the law by suing providers and others who help Texans access abortions.
Legal experts say the court is likely to make a narrower ruling, rather than overturning Roe v. Wade, which means it could strike down the Mississippi ban without touching Texas’ law at all. If the court were to overturn Roe, however, it could lead “trigger laws” across 12 states — including Texas — that ban all abortions to go into effect.
The uncertainty around access to abortion in Texas partially stems from the unprecedented makeup of the high court, which is the most conservative it has been since at least the 1930s, said Josh Blackman, a constitutional law professor at South Texas College of Law.
“The [Mississippi] case is a promising opportunity for the pro-life movement to have the biggest Supreme Court win since 1973,” said John Seago, legislative director for anti-abortion group Texas Right to Life. “We are optimistic.”
The Center for Reproductive Rights is representing both Texas and Mississippi abortion providers in their cases. The court will hear oral arguments on Dec. 1 for the Mississippi case, Dobbs v. Jackson Women’s Health Organization, but the ruling may not come out until June.
State Innovation Exchange, a progressive advocacy group, submitted a filing with almost 900 state lawmakers from across the country, including Texas, in support of upholding Roe v. Wade.
“Previously, amicus briefs have had a sway with the courts,” said Jennifer Driver, senior director of reproductive rights for State Innovation Exchange. “But the makeup of the court looks completely different, and we’re just in a different time. It’s just harder to say what the amicus brief’s impact will do.”
State Rep. Jasmine Crockett, a Dallas Democrat who was among the lawmakers supporting Roe, said the culmination of threats against abortion protections has made her nervous.
“A lot of things we do as lawyers, many lawmakers and even activists is we look for clues,” she said. “The Supreme Court really gave us a terrible clue of where their interest lies right when they decided not to stop the imposition of [Senate Bill 8].”
On Thursday, conservative Supreme Court Justice Samuel Alito Jr. defended the court’s refusal to block the Texas law while stressing that the action was not tantamount to a rejection of Roe v. Wade.
“Put aside the false and inflammatory claim that we nullified Roe v. Wade,” Alito said in a speech at the University of Notre Dame. “We did no such thing. And we said that expressly in our order.”
Texas abortion providers have continuously asked the Supreme Court to block the law’s enforcement, but so far, it has denied their appeals.
“In allowing that ban to go into effect earlier this month, the Supreme Court was clear that it was not ruling on the merits,” said Jenny Ma, a senior attorney at the Center for Reproductive Rights, in a written statement. “It is hard to say how a decision in [the Mississippi case] may impact Texas. ... Anti-abortion politicians designed the Texas law this way to try to insulate it from federal court review.”
Both the Texas and Mississippi laws continued decades of conservative state legislatures’ attempts to push the boundaries of Roe v. Wade. The Supreme Court has routinely struck down these state laws that have attempted to increase regulations for abortion providers or shorten the window for getting the procedure.
Now, the court’s decision making has become less predictable.
“If the Supreme Court were to rule in a way in the Mississippi case that says any pre-viability ban is unconstitutional, then SB 8 may not be allowed to stand, depending on how they sort out [the enforcement component],” said Kari White, an associate professor of social work and sociology at the University of Texas at Austin who studies reproductive health policies.
But the unique enforcement provision, which relies on private citizens instead of state officials, stopped the Supreme Court from blocking the law in early September.
“If the court decides to uphold Roe, then the Mississippi law falls,” Blackman said. “But the Texas law, I think, will have to be resolved on different grounds.”
Blackman said this could involve more complex solutions, such as the Supreme Court stopping Texas judges from hearing lawsuits brought under Senate Bill 8. He also said a ruling on the Texas law may come around the same time as the Mississippi case because of pressure from the Department of Justice lawsuit against Texas.
A potential Supreme Court ruling on Texas’ law has become more consequential as a Florida lawmaker has filed a similar bill to restrict abortions that includes an authorization of “private civil cause of action for certain violations.”
But if Roe v. Wade is overturned, trigger laws would eradicate most access to abortion in some states within months.
“There would be huge swaths of the country, particularly in the Deep South of the midwestern United States, where we would expect people to lose access to abortion,” White said. “They would have to travel hundreds and hundreds of miles to another state in order to be able to get abortion care.”
Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2021/10/05/texas-mississippi-abortion-laws-supreme-court/.
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