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How Louisiana, Mississippi abortion laws could be impacted by Supreme Court hearing

 A woman holds a sign at a Washington, D.C. rally on Jan. 24, 2020.
Hillel Steinberg
A woman holds a sign at a Washington, D.C. rally on Jan. 24, 2020.

The U.S. Supreme Court will hear arguments Wednesday in a case that could reshape the right to abortion in America called Dobbs vs. Jackson Women's Health Organization.

Jackson Women's Health Organization is the last abortion clinic in Mississippi. Lawyers for the clinic will argue against the state of Mississippi, which will be defending a ban on abortions after the 15th week of pregnancy.

Host Karen Brown spoke with two journalists who followed the case closely. Desare Frazier is the senior legislative reporter for Mississippi Public Broadcasting and a Kaiser NPR fellow for Health News Reporting, and Rosemary Westwood is the public health reporter for WWNO Public Radio in New Orleans.

Karen Brown: So, Rosemary, let's start with the big picture. What makes this case so consequential?

Rosemary Westwood: This is probably the greatest threat to Roe vs. Wade since 1973, when the U.S. Supreme Court made abortion a constitutional right. This case could potentially overturn or reaffirm Roe vs. Wade. And if that case is overturned, that would end the constitutional right to abortion. It would allow states to enact complete bans or any other law they see fit for abortion. The Center for Reproductive Rights, which is arguing for the Mississippi abortion clinic at the heart of the case, estimates that 24 states would ban all abortions with the possible exceptions only if the pregnant person's life was at stake. So, for example, Mississippi is arguing over its 15 week ban, but it also has a trigger law that would ban nearly all abortions, and so does Louisiana. And both those trigger laws take effect if Roe vs. Wade were to be overturned. That would really leave women in the Gulf South and much of the country with the choice of traveling hundreds of miles, if they could afford it, finding a legal means to try to end their pregnancies or being forced to continue a pregnancy they may not want. And for anti-abortion activists, they see this as thousands of pregnancies carried to term that might otherwise have ended in abortion and thousands more babies born in these states. So the stakes really couldn't be higher in terms of the fight over the right to an abortion.

Karen: Desare, let's talk about how we got here. How did this case get before the U.S. Supreme Court?

Desare Frazier: Karen, This ban passed in 2018. Initially, the state of Mississippi argued that the 15-week abortion ban is a regulation that doesn't end a woman's right to obtain the procedure. There are exceptions. They are for medical emergencies or severe fetal abnormalities. Currently, the state bans abortion after 20 weeks, and the state's only abortion clinic, located in Jackson, performs them up to 16. The law was blocked by a federal judge who ruled the ban was unconstitutional, and the decision was upheld by the 5th Circuit Court of Appeals. The state asked the court to hear the case after losing that appeal. Initially, Mississippi's Attorney General Lynn Fitch filed a brief arguing the 15-week abortion ban was a regulation and wouldn't end abortion. But last year, when the court became a six-to-three conservative majority, Fitch then filed briefs seeking to overturn Roe v. Wade, saying it's a states' rights issue. Here's what Fitch had to say about the right to an abortion.

Attorney General Lynn Fitch: When we go to the Supreme Court, we'll be asking the court to let the people in Mississippi, in New York, Florida, Iowa and all across the country engage in this dialog through the natural political discourse our Constitution envisions. In the Dodds case, we’ll defend the right of the people to speak their will for the men and women they elect as legislators and as governors.

Desare: Karen, Roe v. Wade has been a precedent for abortion rights cases for nearly 50 years. Senior Attorney Hillary Schneller is with the Center for Reproductive Rights and gives her perspective on the challenge.

Senior Attorney Hillary Schneller: I think the key question for the court is whether there's any reason to come out differently now, and we argued forcefully in our brief, and as we will on December 1 at the oral argument, (that) there have been no changes in the law or the fact that could provide any basis for overruling Roe now.

Karen: So let's talk about the law's origins. Why did Mississippi try to pass this ban in the first place?

Desare: Well, at the time, Mississippi had a Republican supermajority, and they still have one. So the Legislature passed the 15-week abortion ban. This is what Republican Senator Angela Hill of Picayune had to say on the Senate floor during the debate.

Mississippi State Senator Angela Hill: I don't like abortions, period. But when you take a baby and you have to crush the skull and take it apart piece by piece to get it out of a woman's uterus, and you have to catch the remnants in a suction cup and then go to the sink and count them out and make sure you have two hands, two feet, a skull, a spinal cord, that's just wrong. It's inhumane.

Desare: The bill passed along party lines, and then Governor Phil Bryant signed the bill into law. The Center for Reproductive Rights, representing the Jackson Women's Health Organization, appealed the law before it could take effect. The attorneys argued Roe v. Wade established that a woman has a right to an abortion before viability, when the fetus can live outside the womb. But recently, Attorney General Lynn Fitch said great advances in science and technology show that viability begins sooner than scientists thought in 1973. Now, I have spoken to the owner of the Jackson Clinic, Diane Derzis, and she has said on numerous occasions she thinks Roe v. Wade will be overturned. Derzis says the fetus is being considered more important than the woman.

Jackson Clinic Owner Diane Derzis: We are where we've been talking about being for the last 40 years. We're at the crucial point of finding out whose rights prevail. Is it the right of a zygote, an egg, a fetus, or is it the right of the woman to make this decision? So it's as serious as it can get.

Karen: So this is a debate that's been brewing for a long time. And Rosemary, Louisiana has a special interest in this case, correct?

Rosemary: That's right. Months after Mississippi passed its ban, Louisiana passed a nearly identical law. The key difference is that Louisiana's ban was written so that it would only take effect if Mississippi's were upheld. And as Desare said, that hasn't happened. Lawmakers in Louisiana essentially wanted to avoid a duplicate legal battle and potentially hundreds of thousands of dollars in legal fees defending the law. So they've been letting Mississippi fight this battle. But even if the Supreme Court were to try and issue a ruling that narrowly upholds the 15-week ban in Mississippi and does not completely end the constitutional right to an abortion, Louisiana's law would also take effect. That could have major implications for people across the Gulf South because clinics here are overwhelmed right now with patients from Texas. People have probably heard of Texas’ law called SB 8. It's a ban on abortions after six weeks of pregnancy before many women may know they're pregnant. The law took effect in September and has been allowed to stay in effect by the U.S. Supreme Court so that right now, women from Texas are traveling to other states for abortions in what abortion rights groups say is a harbinger of what women from two dozen states will need to do if Roe is overturned. But the reason Texas’ law is in effect is really unique. That law was written to avoid federal court oversight by making citizens, rather than government officials, responsible for enforcing the law by filing civil lawsuits against people who perform abortions or help women get abortions. So legal challenges have been stymied by arguments about who can sue whom over Texas’ law and whether that state can be held accountable for it in federal court. Those arguments haven't been about whether a six-week abortion ban is unconstitutional, and right now, under Roe and Casey, U.S. Supreme Court precedents, it is unconstitutional. So the U.S. Supreme Court heard arguments in that case this fall, and we are still waiting for a decision. But it's important to note that decision will only impact Texas’ law. It's Mississippi's case that has the potential to change the entire country and end legal abortion in half of U.S. states.

Karen: You've both visited the clinic in Jackson in recent weeks. Can you talk about what you saw and how the clinic is handling the pressure of this case, Desare?

Desare: Karen, abortion rights activists tell me the right to an abortion will ultimately affect Black women and other women of color and the poor. They believe more white women will have access to abortion through their private doctors or by traveling to a provider. When I was at the clinic, I did see more Black than white women seeking an abortion. And since Texas passed its 16-week abortion ban, women are traveling to neighboring states to get an appointment. So many are coming to Mississippi. The clinic used to be open several days. Now it's open five days to try and meet the demand. I spoke with Lori, who came in from another state to have an abortion. She asked me not to use her real name and the state where she's from.

Lori: I was heavily influenced by my partner to make the decision, but I care deeply about my partner, and he was not ready to make this decision. Neither one of us were ever ready to make this decision, but we also aren't ready for a child, and that's not something that I want to force on anyone.

Desare: Dana Chisholm is an anti-abortion protester and former president of Pro-Life Mississippi. She was outside of the clinic about two weeks ago handing out literature. She said she understands what women are going through and appreciates the distress they feel. Chisholm also discussed her own experience with an unplanned pregnancy.

Anti-abortion Protester Dana Chisholm: I was unplanned back a long time ago, and I had an unplanned daughter and I've had an unplanned grandchild, and that would be whole generations of people that would not be here if it were not for the grace of God.

Karen: And Rosemary, what was your visit like at the clinic in Jackson?

Rosemary: The anti-abortion protesters I talked with at the clinic certainly wanted to see Roe overturned, but they also told me they felt that abortions would continue, if illegally. They were stepping up to cars as people tried to drive into the parking lot, talking through closed car windows and yelling as women got out of vehicles to walk into the clinic, asking those women not to get an abortion. And I had a similar experience to Desare, meeting women who traveled from other states, seeing waiting rooms full of predominantly Black women. I saw one Texas patient who had a young child and had driven hours to get there, but didn't know that there was a state-mandated, 24-hour waiting period between when you first see the doctor and when you're allowed to get an abortion. And she was distraught because she didn't know how she was going to be able to wait a full day to have that abortion. I met a woman from Louisiana who'd driven to Jackson because it would have taken her weeks to get an appointment at the New Orleans clinic, which is full of Texas patients. A doctor I spoke to there as well said that no doctors who work in Mississippi will work at the clinic for fear of retribution, and he worries there could be more blowback on the clinic and people who work there if the U.S. Supreme Court doesn't overturn Roe. So he's afraid that abortion could end if Roe were overturned, but he's afraid about what he could face if the court does not take that step when so many are expecting it to and hoping it will.

Karen: Desare, how are lawmakers in Mississippi feeling about the case?

Desare: Well, lawmakers who support ending abortion rights, they are feeling optimistic. In terms of the makeup of the High Court, they believe the odds may be in their favor.

Karen: What's been the reaction to the case by national anti-abortion and abortion rights groups?

Desare: Anti-abortion rights activists, Karen, aren't letting up. They recently held an event called 40 Days for Life, during which they protested at the abortion clinic, fasted and prayed. They are determined to keep advocating for an end to the procedure. Abortion rights groups are galvanizing their efforts to put alternatives in place, they say, should Roe v. Wade be overturned. Advocates are telling me if abortion is outlawed, women won't stop having abortions, and they’re working on what they call safe self abortions.

Rosemary: I just would add that nationally, this case is probably the biggest abortion case in decades, and activists are preparing on both sides for the momentous decision, as Desare said. And this is really something that I think it's important to note is a result of the presidency of former President Donald Trump. He appointed three of the nine justices. His last appointment, Amy Coney Barrett, took the seat of the late Justice Ruth Bader Ginsburg, and that meant Ginsburg, probably the court's most famous defender of reproductive rights, has been replaced by Barrett, a pick hailed by conservatives and anti-abortion groups who view her as a critic of Roe vs. Wade. I've seen abortion rights groups sort of take note of that change and begin to actively campaign to raise awareness about this case because they see that the change in the court is the difference. It's less that Mississippi passed a 15-week ban and more that the U.S. Supreme Court itself has changed. And it's the same feeling that I've seen expressed by anti-abortion advocates. There's one major legal scholar who told me, you know, if not now, when a highly conservative majority is on the court and there's a case before the court directly aimed at Roe vs. Wade, if not now, when. And what he meant was if you don't overturn Roe now, when will you do it?

Karen: OK, so what happens next?

Rosemary: So the justices will hear arguments beginning at 9 a.m. CT. Those are actually streamed online, so anyone can go to the website for the U.S. Supreme Court and listen in. I'll actually be there in Washington, D.C., taking stock of the people outside of the courtroom. There will be protests and rallies on the steps of the U.S. Supreme Court for both sides. And after that, it will likely take months for a decision to be issued. The court has a history of issuing its major decisions at the very end of the term, so that would be in June, and there will be a strange sort of pause in the case for months before the country could be drastically changed.
Copyright 2021 WWNO - New Orleans Public Radio. To see more, visit WWNO - New Orleans Public Radio.

Rosemary Westwood is the public reporter for WWNO/WRKF. She was previously a freelance writer specializing in gender and reproductive rights, a radio producer, columnist, magazine writer and podcast host.
Desare Frazier