Mississippi's Threat to Roe v. Wade

As Salon's Irin Carmon reports, a Republican appointed district-court judge has prevented a new statute that would force the only remaining abortion clinic in Mississippi to close. (The new law was necessary because, despite the best efforts of past Mississippi legislatures, one lone clinic in Jackson has managed to heroically persevere through a maze of state restrictions.) The stay is temporary, and the issue will presumably have to be resolved by a higher appellate court, possibly ending with the Supreme Court of the United States.

Should this case make it up the appellate chain, it will provide a crucial test for Planned Parenthood v. Casey, the 1992 case that currently controls reproductive-freedom cases. Under Casey, previability abortions cannot be banned, but regulations that do not constitute an "undue burden" are permissible. The implicit premise of the compromise that upheld Roe v. Wade was that while women seeking abortions could be inconvenienced, they could not be denied their right to choose an abortion outright. In practice, however, as the case of Mississippi starkly demonstrates, the "undue burden" standard has been applied so narrowly that states can use an ever-expanding variety of arbitrary restrictions to deny many women their right to choose altogether.

This case could prove an especially important landmark because the motives behind the Mississippi statute are transparent. While state regulations of abortion are almost always intended to be part of a long-term plan to ban abortion outright by pro-life interests, state legislators often try to defend abortion regulations as means not to restrict abortion but to protect the health of women.

In the case of Mississippi, there's no pretense that these regulations are anything but attempts to make it impossible to obtain abortions in the state. The goal, according to Governor Phil Bryant, is to make Mississippi "abortion free." Should the latest set of arbitrary regulations somehow not succeed in shutting down the state's lone abortion clinic, the legislature will keep trying. The goal is to ban abortion, not to protect the health of women.

To uphold Mississippi's regulatory framework would be to effectively overrule Roe and Casey. What would happen should this case get to the Supreme Court, however, is unclear. Theoretically, there are five votes on the Supreme Court for upholding Roe v. Wade. But one of these votes, Justice Kennedy, has found only one kind of regulation (spousal notification) to be an undue burden, and he has written an opinion upholding a federal ban on partial-birth abortions that is rife with the sexist assumptions of anti-choice activists. The best-case scenario would probably be a lower appellate court decision holding the new law unconstitutional that the Court declines to review.

Should it get to the highest level, anything could happen, including the de facto overruling of Roe v. Wade.

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