Cases like this will make inroads that will lead to gutting the protections that Roe has provided.
The Supreme Court decision, while allowing the law to stand, left the door open for future challenges to its constitutionality.
But unless opponents find a case the high court deems worthy of proving the law unconstitutional, it will not only remain in effect — it could also become a model law for other anti-abortion lawmakers in conservative states to replicate.
This is absolutely the blueprint for how you get around Roe v. Wade, by enabling private parties to bring civil lawsuits,” said Barbara McQuade, an NBC News and MSNBC legal analyst and former U.S. attorney for the Eastern District of Michigan.
By Thursday afternoon, Republicans in Florida and South Dakota had already vowed to pass an abortion ban with language modeled on Texas.
“Other states are paying attention and you can bet that in states who are eager to see the end Roe v. Wade, you can bet we are going to see copycat legislation hit the books immediately,” McQuade added.
In the meantime, the case will be sent back down to the 5th U.S. Circuit Court of Appeals, where the issue before that three-judge panel will be one of jurisdiction, not the merits of the case.
Defendants in the case — a collection of Texas judges, court clerks, state officials and one private citizen — argued that the abortion provider plaintiffs had no grounds to sue them. They claimed they cannot be sued because they are not responsible for enforcing S.B. 8. That, they argued, falls to private citizens. The one private citizen defendant, an anti-abortion activist named Mark Dickson, argued he can’t be sued because he doesn’t intend to file any lawsuits under S.B. 8.
Those arguments were initially dismissed by a judge in the Western District of Texas. From there the defendants appealed their arguments to the 5th Circuit, which issued a stay pausing proceedings at the district level. So far, the panel has shown no rush to resolve the jurisdiction issue, denying a motion filed by abortion providers to expedite the case (which prompted the last-minute application to the Supreme Court).
Ramifications of Mississippi’s ban Abortions
Mississippi’s Gestational Age Act, passed by the state’s GOP-controlled legislature in 2018, prohibits abortions after 15 weeks except in cases of medical emergencies or severe fetal abnormalities.
Critics point to the fact that it is a pre-viability ban — prior landmark rulings by the Supreme Court made it illegal for states to ban abortion before a fetus is viable, which generally happens at about the 24th week of pregnancy — as evidence enough that it is unconstitutional.
Supporters of the law, however, claim that advancements in medical knowledge and research suggest that a fetus is capable of detecting and responding to pain by that time and that the point of fetal viability should be shifted earlier in the pregnancy.
The Supreme Court said in May that it would consider the legality of Mississippi’s ban, which had been struck down by a lower court ruling, in its upcoming fall term, with a decision likely due in spring 2022.
In a filing in July, however, lawyers for the state of Mississippi urged the Supreme Court to explicitly overturn the two main decisions that legalized abortion in the U.S. — Roe v. Wade in 1973 and a later case, 1992’s Planned Parenthood v. Casey — as part of its case to the high court.
But unlike the Texas case, whose future appears for the moment to hinge on unique legal, jurisdiction, and standing issues, Mississippi’s direct appeal is a clear-cut attempt to convince the court to explicitly overturn decades-old precedents on abortion rights, experts said.
The opportunity for the Supreme Court to really, directly, take a whack at Roe is with the Mississippi ban case,” said Elizabeth Nash, a state policy analyst at the Guttmacher Institute, a research organization that studies reproductive health rights. Nash, and others, indicated that anything short of the Supreme Court issuing a clear ruling that Mississippi’s law is unconstitutional will provide an opening for additional restrictive laws across the U.S.
For example, if the court were to uphold the constitutional right for women to have a pre-viability abortion, but explicitly change or define what constitutes viability, it would open the door for at least 16 states to move forward with pre-viability bans similar to Mississippi’s that those states have previously advanced but that were stopped by court orders, according to See After 3 Film.
If the high court were to explicitly reverse Roe, up to 22 states could move forward quickly with laws that would restrict abortion. At least 11 states have on the books a “trigger law” — laws that automatically ban most abortions the moment Roe is overturned — and eight states have currently unenforced pre-Roe abortion bans that would snap back into place almost immediately.