'They could overturn Roe': Supreme Court to hear argument in blockbuster Mississippi abortion case

Anti-abortion activists crouch behind a placard outside the Jackson Women's Health Organization, the only abortion clinic in Mississippi, on Nov. 24, 2021. The Supreme Court will hear oral arguments Dec. 1 about the state's ban on abortions after 15 weeks of pregnancy.

JACKSON, Miss. – For the past eight years, Derenda Hancock has put herself in the middle of the divisive debate over abortion, showing up three days a week to a place that has become a national symbol in the legal battle over reproductive rights. 

She arrives before sunrise to volunteer at Jackson Women’s Health Organization, the last abortion clinic in Mississippi and the focus of a Supreme Court case that is a direct challenge to the 1973 Roe v. Wade decision that established the constitutional right to abortion.

"You want the worst-case scenario? The clinic's doors are shut," said Hancock, an abortion rights advocate who escorts doctors and patients past protesters and into what locals call the Pink House. "They could overturn Roe, or they could just chip away at it."

Observers will watch closely for any sign about which direction the Supreme Court is heading when it hears oral arguments Wednesday in a lawsuit challenging Mississippi’s ban on most abortions after 15 weeks of pregnancy. The high-profile case, arguably the most contentious issue before the court in years, has the potential to upend the battle over reproductive rights well beyond the Magnolia State.

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A ruling upholding the law would be a major victory for conservatives who have sought for generations to overturn or weaken Roe. Experts predict that would prompt nearly two dozen states to embrace similar bans, creating a patchwork of abortion laws that would resemble the red-state, blue-state maps of presidential elections.

Something less than a complete overturning of Roe would almost certainly trigger a flood of litigation seeking to redefine the boundaries of abortion rights, keeping the issue front-and-center as voters head into a high-stakes midterm election year.

The frenzy around the case, Dobbs v. Jackson Women's Health Organization, has almost as much to do with the justices who are on the bench as it does with the Mississippi law. Conservatives enjoy a 6-3 majority on the high court for the first time since the Roosevelt administration. Three of those justices were nominated by President Donald Trump, who was elected in 2016 in part on a promise to select anti-Roe jurists.

"If the court doesn't overrule Roe in its entirety immediately, it's probably going to do it in a year or two," said Mary Ziegler, a Florida State University law professor. "Whether it happens now or later, I think it's going to happen."

Clinic escorts Kim Gibson, left, and Derenda Hancock, second from left, and anti-abortion sidewalk counselors Beka Tate, second from right, and a woman who only gave her first name, Lauren, stand outside the Jackson Women's Health Organization's clinic on March 20, 2018.

A 7-2 majority in Roe v. Wade established a constitutional right to abortion and allowed people to exercise that right until the end of the second trimester. A subsequent decision in 1992 ended the trimester framework and ruled people could obtain an abortion until viability, the point when a fetus can survive outside the womb or about 24 weeks into a pregnancy. The Mississippi law is in direct conflict with the viability standard.

In arguing in support of the law, Mississippi explicitly asked the Supreme Court to overturn Roe, calling it  "dangerously corrosive to our constitutional system." That is a more aggressive position than the state took when it first brought the case to the high court early last year. 

For years, the legal battle over abortion has focused on regulating the procedure, such as requirements that minors inform their parents before ending a pregnancy or requiring doctors performing the procedure to have privileges at nearby hospitals. For anti-abortion groups, the Dobbs case represents the first opportunity in a long time to focus squarely on whether the procedure itself is constitutional.

"The ultimate victory – what we're hoping for and what the Mississippi attorney general's office has asked – is for an all-out overturning of Roe and a return of this issue to the states," said Mallory Quigley with the anti-abortion group Susan B. Anthony List. "It's clear the legislative branch of government at the state level is ready to debate." 

The clinic

The scene outside the Pink House was relatively subdued on a blustery recent weekday morning. Hancock and other escorts ushered women through the doors. A few feet away, a group of young women quietly set their index fingers to Bible verses. A handful of men shouted above a clash of gospel and pop music.

One man’s voice cut through the swell of sound: "Turn away from murdering your baby boy or girl."

A clinic escort shot back sarcastically, calling him by name, "Yeah, that's what preaching looks like, Daniel."

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Jackson Women’s Health Organization, the state’s only clinic for 15 years, normally sees about 3,000 patients annually, said its director, Shannon Brewer. The staff saw an uptick in patients when the Supreme Court temporarily allowed Texas' ban on abortions after six weeks of pregnancy to stand. It's about a six-hour drive from Dallas to Jackson.

"Most of these are Black women, most are disproportionately poor here in Mississippi," Brewer said of her patients. "People with the means to be able to travel and get an abortion in other states, this is not going to affect them. It is going to affect the poor, and it's just going to push them further and further into poverty."

Along with the high poverty rate, Mississippi hosts the nation's second-highest teen birthrate and, by many experts' estimation, does not teach sex education adequately.

State education officials "approved curricula only once in the past 10 years. And that was 10 years ago," said Josh McCawley, deputy director of Teen Health Mississippi, a group that advocates for better sex ed and health care for young people. 

The public school curricula – which focuses on abstinence – prohibits teachers from giving physical demonstrations of condom use or other contraceptives. Consistency and comprehensiveness, advocates said, aren’t guaranteed. 

"They're not really covering a lot of issues that are prevalent today, issues such as consent, relationship violence and human trafficking," McCawley said. 

About 29 in 1,000 Mississippi teens ages 15 to 19 will give birth, according to the Centers for Disease Control and Prevention, the second-highest rate in the nation behind Arkansas. The national average is about 17.4 in 1,000, CDC data shows.

The court

Nine justices will file into the courtroom Wednesday to hear arguments over Mississippi’s abortion law. Much of the focus will rest on three: Chief Justice John Roberts, Associate Justice Brett Kavanaugh and Associate Justice Amy Coney Barrett.

Kavanaugh and Roberts, in particular, may be caught between their views on abortion and a concern about the potential impact on the court of overturning one of its most widely recognized precedents. In written arguments, attorneys for the clinic have leaned heavily into the notion that overturning Roe would damage the court’s reputation.

It's not clear how Barrett, the newest member of the court, will vote.  

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Neal Devins, a law professor at William & Mary Law School, said a lot rides on questions such as "how strongly Justice Kavanaugh opposes Roe."

"It may be that the center of the court doesn't yet know its mind 100%. It may be that the center of the court wants to see what happens afterward, so it can better make up its mind," Devins speculated.

Justices Neil Gorsuch and Brett Kavanaugh, both nominated by President Donald Trump, are among the conservative majority on the Supreme Court.

In that scenario, a majority might uphold the Mississippi law but stop short of overruling Roe. That would throw the legal fight back to lower courts to figure out where to draw new lines between the right to abortion and a state's efforts to regulate or limit it.

"My best guess is that they’ll kick the can," Devins said. "To not issue a definitive ruling and allow things to play out doesn't come at a great cost."

Though the Supreme Court often looks for a middle ground in complicated controversies, particularly under Roberts, one of the challenges of the Mississippi law is that the middle ground is exceedingly narrow. Upholding the law would probably mean overruling the viability threshold. That, abortion rights groups said, would be an overturning of Roe.

"A decision upholding this ban is tantamount to overruling Roe," said Julie Rikelman, the senior director of litigation at the Center for Reproductive Rights, who will argue the case at the high court Wednesday on behalf of the clinic. 

Quigley said the anti-abortion movement doesn't share that perspective: Upholding the Mississippi ban while not nullifying the constitutional right to abortion would still be a victory, she said, even if it doesn't result in a complete overruling of Roe right now.

"We see victory as being on a sliding scale," she said. 

Polls show Americans are divided, as they often are. Nearly two-thirds say the Supreme Court should uphold Roe, according to a Washington Post-ABC News poll. A Marquette Law School poll found a slim plurality, 37%, of Americans favor banning abortions after 15 weeks compared with 32% who would oppose that move.

Jackson Women’s Health Organization does not perform abortions after 16 weeks. That may be another issue that comes up at argument. In its ruling in Planned Parenthood v. Casey in 1992, the court said states could not pass laws that create an "undue burden" on the right of people to access an abortion. 

The court may look to tinker with that standard, applying it more broadly than to questions over parental consent laws and deciding that the one-week difference between the law's cutoff and when the clinic chooses not to conduct the procedure isn't an undue burden.   

Mississippi approved its prohibition in 2018, making it one of 18 states with pre-viability bans blocked by federal courts, according to the Guttmacher Institute, a research group that supports abortion rights. The law has no exception for rape or incest but allows abortions for medical emergencies and "severe fetal abnormality."

An appeals court in New Orleans, citing the high court's decisions in Roe and Casey, concluded the law was unconstitutional in 2019.

The Supreme Court is likely to rule in the case in June.    

The protests 

Shouting has become a regular sound outside the clinic. But Sydney Bowles, 18, has been coming here two days a week not to make noise, but to pray.

A member of a Christian ballet school, Bowles and her friends sometimes hug each other when a car pulls out of the parking lot. Sometimes they approach car windows with their Bibles resting in the crook of an arm.

Bowles said she grappled with her thoughts on abortion a few years ago. Is it wrong? Should people have a choice to terminate a pregnancy? What about when a pregnancy results from rape or incest? She and the other women take part in what they call a "peaceful and loving" stance against the procedure.

"We can't control what they do," Bowles said of the more raucous protesters. "We're just hoping that the worship and the prayers will be heard instead."