Sunday, August 1, 2021

Mississippi's "Unclean Hands" in Abortion Case

            Two or three months into the Supreme Court’s new term, a lawyer representing the state of Mississippi will ask the Court later this year to uphold a blatantly unconstitutional abortion law enacted by the state’s legislature three years ago. The Gestational Age Act prohibits a woman from having an abortion after the fifteenth week of pregnancy except in cases of medical emergency or severe fetal deformity. The law directly contravenes the Supreme Court’s decisions that guarantee the right to terminate a pregnancy before a fetus reaches viability, generally defined as after the twenty-third week of pregnancy. .

            Paul Barnes, a private lawyer designated as special assistant attorney general for the case, is unlikely to begin with a candid explanation of the origins of the case, Dobbs v. Jackson Women’s Health Organization. In candor, Barnes ought perhaps to explain that the 2018 law is the Mississippi’s legislature’s latest enactment in efforts extending over two decades to deny Mississippi women reproductive rights guaranteed to them since 1973 under Supreme Court precedents.

            Two lower federal courts unhesitatingly struck down the 2018 law before the state brought the case to the Supreme Court in hopes of undermining or overruling the Court’s decisions dating from the first of those precedents, Roe v. Wade (1973). As long ago as 2004, federal courts struck down one of the legislature’s earlier attempts to deny Mississippi’s women any practical ability to exercise the right of choice guaranteed under Supreme Court precedents.

            The law challenged back then imposed onerous licensing requirements on facilities, such as the Jackson Women’s Health Organization (JWHO), that provided abortion services. In blocking that law, federal judge Thomas Lee rejected the legislature’s claimed justification that the requirement helped protect patients’ health and safety. Lee found instead that the requirement “does nothing to further this putative interest” and that the law’s effect was “to make abortions following the first trimester unavailable to women in this State.”

            Lee’s decision in 2004 anticipated by more than a decade the Supreme Court’s eventual decision to strike down a similar Texas law in Whole Woman’s Health v. Hellerstedt (2016). Four years later, the Supreme Court reaffirmed that decision by striking down a similar Louisiana law in June’s Medical Services L.L.C. v. Russo (2020).

            In his decision striking down Mississippi’s most recent effort to nullify abortion rights in the magnolia state, U.S. District Court Judge Carlton Reeves cited the 2004 abortion case in footnote 40 as one example of what he called the Mississippi legislature’s “history of disregarding the constitutional rights of its citizens.” Reeves recalled as well that the Supreme Court found, fifteen years after its school desegregation decision in Brown v. Board of Education (1954), that Mississippi was denying “fundamental rights to many thousands of school children, who are presently attending Mississippi schools under segregated conditions contrary to the applicable decisions of this Court.”

            In short, Mississippi has a shameful history of defying the Supreme Court rather than complying faithfully to assure the state’s citizens the same rights enjoyed by Americans in all other states. Mississippi’s extraconstitutional defiance recalls, of course, the state’s history of taking up arms against the national government in 1861 and the state’s wrongful pride in that history as seen in the use of the Confederate battle flag in the state’s flag for more than a century until a new flag was adopted earlier this year. Moreover, the University of Mississippi’s athletic teams today still compete, sixty years after federal court-ordered desegregation, as “the Ole Miss Rebels.”

            The abortion case now before the Supreme Court originally included legal challenges to five other laws the state’s legislature enacted designed for all practical purposes to regulate abortion clinics out of existence. In fact, Mississippi once had four clinics providing abortion services in the state, but the Jackson facility is now the only one still operating.

            In his ruling in the case, Reeves rejected the legislature’s pretense that it was acting in the interests of the state’s citizens, but was in fact joining a campaign waged by national interest groups. “The State chose to pass a law it knew was unconstitutional,” Reeves explained, “to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.

            In short, Mississippi brings its plea to the Supreme Court with “unclean hands,” a record of defying the Court’s jurisprudence time and again in the same way that Mississippi defied the Supreme Court’s rulings on school desegregation in the 1950s and ‘60s.  The Court responded back then with a short and sternly worded decision, Alexander v. Holmes County Board of Education (1969), that effectively ordered Mississippi’s school districts to desegregate without further delay.

            Mississippi’s defiance of the Court’s abortion-rights rulings cries out for the same kind of summary decision and stern reprimand rather than a respectful hearing for a state that has knowingly set itself against the law of the land. The Court that will hear the case later this year has been packed with anti-abortion conservatives, thanks to the national campaign to overturn Roe v. Wade. The state argues in its brief that Roe v. Wade is “egregiously wrong,” but in fact public opinion polls consistently show that a majority of Americans approve of the Court’s decision.

            A different, unpacked Supreme Court considered this issue thirty years ago and pointedly reaffirmed Roe v. Wade’s “essential holding” in Planned Parenthood v. Casey (1992). In the pivotal opinion, three Republican-appointed justices – O’Connor, Kennedy, and Souter – joined in rejecting the criticism that the decision has proved to be “unworkable.” To the contrary, they joined in emphasizing the actual importance of the decision. “An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions,” they wrote. Nothing but politics undermines either of those two propositions.

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