April 2022 Bar Bulletin
By Diamond Brown, Esq.
The U.S. Supreme Court is preparing to announce their decision in the most consequential abortion rights case in generations, Dobbs v. Jackson Women’s Health Organization,1 which concerns a Mississippi abortion ban that directly challenges Roe v. Wade.2 The case was filed in March 2018 by the Center for Reproductive Rights on behalf of Jackson Women’s Health Organization — the last remaining abortion clinic in Mississippi — to block the state’s unconstitutional ban on abortion after 15 weeks of pregnancy.
The ban threatens abortion providers with severe penalties, defies nearly 50 years of precedent, and undermines the integrity of our judicial system. Jackson Women’s Health marks the first time the Court will rule on the constitutionality of a pre-viability abortion ban since Roe. The Court’s ruling in Roe recognized that the decision whether to continue a pregnancy or have an abortion, which impacts a person’s body, health, family, and future, belongs to the individual, not the government.
The people hurt most by these restrictions are those who already face barriers to accessing health care — including women, Black, Indigenous, and people of color, those working to make ends meet, LGBTQI+ people, immigrants, young people, those living in rural communities, and people with disabilities. It is especially troubling that the Court has agreed to hear this case during a global pandemic, which continues to present barriers and delays for patients.
Access to abortion has been truncated across the Nation by the Supreme Court, who just a month prior to oral arguments in Jackson Women’s Health, failed to block Texas’s extreme ban, S.B.8.3 As a result, patients in Texas must travel to neighboring states and beyond to access time-sensitive abortion care. This is inflicting unreasonable chaos on abortion clinics in other states who are absorbing the flood of patients, resulting in delays and wait times for all patients.
Oral arguments for Jackson Women’s Health were heard on December 1, 2021, and the Court’s questioning alluded to two different paths forward — the possibility of overturning Roe or dismissing the viability line, upholding the 15-week ban.4 Although there is still hope that the Court will rule in a manner consistent with decades of precedent — in examining the Justices’ questions and inquiries, they indicated a possibility of upholding the ban and/or seriously curtailing abortion access.
There is no feasible path for the Supreme Court to uphold Mississippi’s ban without overturning Roe’s core holding. If Roe fell,5 abortion would likely be banned in half the country; according to the Guttmacher Institute, 26 states are “certain or likely to ban abortion” should Roe be overturned.6
The fundamental right to make decisions about our bodies, lives, and futures is essential to the pursuit of racial, reproductive, and economic justice. Abortion restrictions are part of the intertwined systems of oppression that deny Black, Indigenous, and people of color their constitutional rights. According to data analyzed by the Kaiser Family Foundation, people of color comprise 44% of Mississippi’s population, but 80% of women receiving abortions. Similarly in Texas, minority communities comprise 59% of the population and 74% of those receiving abortions.7 If the Supreme Court allows states like Mississippi to restrict access to abortion further, Black and brown communities will bear the brunt of the burden.
In nearly all aspects of reproductive healthcare, Black people and people of color face poorer health outcomes. The long history of ongoing structural racism and discrimination — including mistrust in the medical community, lack of access to high-quality affordable health insurance, inadequate education resources, negative experiences at healthcare facilities, etc — is exacerbated by further restrictions on abortion. Such barriers already cause immense damage to vulnerable communities.
Furthermore, if Roe is overturned and Mississippi’s ban is upheld — it would force thousands of people to scramble to secure travel, lodging, and childcare to access care in other states. People who live in rural or isolated communities, such as Indigenous people, would experience even greater hardship in accessing distant care resulting in the inability to have an abortion.
The alternative to abortion is pregnancy, which is significantly more dangerous than elective abortion, namely for Black, Indigenous, people of color and non-binary people who already experience systemic racism in accessing routine medical care.8 The risk of maternal death for Black women in Mississippi is 75 times greater than the risk of elective abortion.9 Denying abortion care has negative effects on the educational and professional opportunities of the pregnant person, and compounds the financial and physical hardship associated with pregnancy in the United States.
With the possibility of a post-Roe reality, we cannot rely solely on courts to defend abortion rights and access from constant attacks. Dozens of cases challenging anti-abortion laws are currently making their way through courts — and the recent decisions have indicated hostility toward reproductive rights and access. There have been attempts to pass federal legislation, like the Women’s Health Protection Act (WHPA),10 that would create a statutory right for health care providers to provide abortion care. However, after passing in the House, WHPA fell short of the 60 votes required in Senate to move the bill forward. Still, it was a significant vote — the first standalone legislation involving abortion access and ahead of the Supreme Court decision in Jackson Women’s Health.
Access to abortion is necessary for social and economic equality and well-being. Lawyers who are leaders in their communities have an ethical duty to take a stand against laws that will undermine justice, equality, and the rule of law. They understand the importance of things like stare decisis and maintaining the integrity of the judicial system — its critical legal leaders are incorporated in the fight for uplifting reproductive health, rights and justice.
Overturning Roe will diminish judicial integrity — and the legal profession must collectively use its skills to fight for an objective court system because anything less compromises the basic notions of impartiality and autonomy in a democratic society. This is not just a matter of the legality of abortion, or whether you believe that the decision to have an abortion is right — it is a matter of the rule of law and every person’s constitutional right to safe, reliable, and equitable healthcare.
Diamond Brown serves as counsel with the Lawyers Network at the Center for Reproductive Rights. Part of her portfolio work consists of engaging various legal communities across the United States to increase education, advocacy and support for reproductive health, rights and justice. In her personal capacity, Diamond supports and volunteers with a number of organizations who work to eradicate white supremacy and dismantle racially-biased systems that exist within and throughout our community.
1 The Center for Reproductive Rights, Dobbs v. Jackson Women’s Health Organization: The Case in Depth (2022). https://reproductiverights.org/case/scotus-mississippi-abortion-ban/dobbs-
2 Roe v. Wade, 410 U.S. 113 (1973).
3 Texas SB8 bans abortion at six weeks of pregnancy and deputizes private individuals to bring lawsuits against anyone who provides care or assists someone in getting care, Whole Woman’s Health v. Jackson; https://reproductiverights.org/case/texas-abortion-ban-us-supreme-court/.
4 Dobbs v. Jackson Women’s Health Oral Arg. Tr. https://www.supremecourt.gov/oral_arguments/audio/2021/19-1392.
6 Guttmacher Institute, 26 States Are Certain or Likely to Ban Abortion Without Roe: Here’s Which Ones and Why (2021). https://www.guttmacher.org/article/2021/10/26-states-are-certain-or-likely-ban-abortion-without-roe-heres-which-ones-and-why.
7 Reported Legal Abortions by Race of Women Who Obtained Abortion by the State of Occurrence. https://www.kff.org/womens-health-policy/state-indicator/abortions-by-race/?currentTimeframe
8 See Miss. Dep’t of Health, Miss. Maternal Mortality Report 2013–2016, 5, 25 (Mar. 2021), https://perma.cc/H362-RN2Q (reporting 33.2 pregnancy-
related deaths per 100,000 live births); CDC, Abortion Surveillance (2018), https://perma.cc/X2KWMDSA (reporting 0.44 deaths per 100,000 legally induced abortions in the United States from 2013–2017).
9 Brief of Amici Curiae Birth Equity Organizations and Scholars, Dobbs v. Jackson Women’s Health Organization (2021). https://www.supremecourt.gov/DocketPDF/19/19-1392/193076/20210920174752687_19-1392bsacBirthEquityOrganizationsAndScholars.pdf.