In 2018, Jackson Women’s Health Organization challenged the constitutionality of Mississippi’s Gestational Age Act, which prohibits nearly all abortions after 15 weeks of pregnancy, with limited exceptions for fetal abnormalities and medical emergencies.  Both the U.S. District Court for the Southern District of Mississippi and the U.S. Court of Appeals for the Fifth Circuit held that the law was unconstitutional under the Supreme Court’s precedents in Roe v. Wade and Planned Parenthood v. Casey, both of which recognized the constitutional right to pre-viability abortion.

Mississippi then filed a petition for a writ of certiorari in the Supreme Court, urging the Court to sustain its law.  In 2021, the Court agreed to hear the case, and on June 22, 2021, Mississippi filed its merits brief urging the Court to overrule Roe and Casey.  On September 20, 2021, CAC filed a friend-of-the-court brief in support of Jackson Women’s Health Organization.

Our brief contended that the Mississippi abortion ban is unconstitutional and that the Court should reaffirm Roe and Casey.  Significantly, if the Court were to overturn Roe and Casey, it would rob millions of Americans of the basic fundamental rights to control their bodies, choose whether and when to start a family, determine their life course, and participate as equals in American life.

To start, our brief demonstrated that the text and history of the Fourteenth Amendment protect personal individual rights essential to liberty, dignity, and autonomy.  Against the backdrop of the suppression of rights in the South, the Framers wrote the Fourteenth Amendment to provide broad protections for substantive liberty—not limited to rights enumerated elsewhere in the Constitution—to secure equal citizenship stature for all people.  Throughout the debates over the Fourteenth Amendment, the Framers of the Amendment made clear that the Amendment was understood to protect basic personal rights, including the right to enjoy bodily integrity and to make decisions whether to marry, bear and raise children, and start a family.

Our brief also refuted some of Mississippi’s flawed arguments for overruling Roe and Casey.  For example, Mississippi claims that the Constitution’s text does not mention abortion and therefore gives the State authority to regulate pre-viability abortions.  Our brief emphatically countered this argument by pointing out that the Constitution is equally silent on many of the other fundamental rights that are not only deeply rooted in the text and history of the Fourteenth Amendment, but also have been recognized by the Supreme Court.  Mississippi also suggests that because many states at the time of ratification restricted abortion, the public would have understood such regulations to be consistent with the Fourteenth Amendment.  But, as our brief explains, the Court has never accepted state practices at the time of ratification as a definitive measure of what fundamental rights are guaranteed by the Fourteenth amendment.

Finally, our brief urged the Court to reaffirm Roe and Casey’s viability line.  The brief made clear that no other line does a better job of both protecting the individual’s right to abortion while accommodating the interests of the government, and Mississippi offers no workable alternative to that line.

On June 24, 2022, the Supreme Court upheld Mississippi’s abortion ban, overturning nearly 50 years of precedent recognizing the constitutional right to a pre-viability abortion.

In a joint dissent, Justices Breyer, Kagan, and Sotomayor explained that the Fourteenth Amendment protects a broad range of rights not limited to the rights enumerated elsewhere in the constitution, including a right to liberty. That right to liberty encompasses the right to bodily autonomy and the right to make decisions that substantially affect the course of one’s life, and the right to access abortion fits well within this understanding of liberty. The dissent went on to highlight how the Court’s decision failed to respect decades-old precedent and, for the first time in the Court’s history, took away a fundamental right.