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This Supreme Court Case May Be The Final Battle In The Long War On Abortion Rights

·11-min read
(Photo: Illustration: Damon Dahlen/HuffPost; Photos: Getty)
(Photo: Illustration: Damon Dahlen/HuffPost; Photos: Getty)

Shannon Brewer has called the Jackson Women’s Health Organization in Mississippi a sort of second home since she began working there as a sterilization technician in 2001. Fast forward 20 years and Brewer is now the director of JWHO, the last abortion clinic in Mississippi, and she’s headed to the Supreme Court in Washington to take on the fight of her life.

On Wednesday, the high court is scheduled to hear oral arguments in Dobbs v. Jackson Women’s Health Organization, which centers on a 2018 Mississippi law that seeks to ban abortion after 15 weeks of pregnancy. The law directly contradicts Roe v. Wade, the 1973 Supreme Court decision that protects the right to abortion. Roe made it a constitutional right to access safe and legal abortion until a fetus’ viability, which is around 24 weeks. The Mississippi law cuts that almost in half with a 15-week restriction.

Since JWHO is the only abortion clinic left in the Southern state, the law directly targets Brewer and her staff. And they have a heavy burden to bear. Not only will the case decide the fate of abortion rights in Mississippi, it will also determine if abortion access will remain legal across the country.

“I’ve been asked a lot of times if this is a scary thing that’s going on, just like all of the other cases we’ve done over the years,” Brewer said on a call with reporters earlier this month. “This case has worried me more than any other one, because I know this is going to be detrimental to women not only here in Mississippi, but in so many states. Because, believe me, if [the Supreme Court] decides to do it, most of the other Southern states are going to ban abortion immediately.”

The Supreme Court could strike down the Mississippi law, which would mean Roe remains the law of the land. Or the court could uphold the law ― whether banning abortion outright or tinkering with the gestational limit ― which would effectively overturn Roe and allow states to set their own standards. If that happens, it would trigger bans or constitutional amendments in several states that would immediately outlaw abortion.

The Supreme Court isn’t expected to decide the Mississippi case until June. If the state law is upheld, it will be the beginning of a nationwide battle in a post-Roe world. But for people in Mississippi, where abortion rights have been under attack for years and reproductive choice already badly restricted, it would be a final blow.

‘A 25-Year Campaign To Eliminate The Constitutional Right To Abortion’

It’s no mistake that the last battle in a decadeslong war over abortion rights has come to a head in the state of Mississippi. Mississippi is one of the states with the greatest number of abortion restrictions and the worst access to abortion care, with 88% of women of childbearing age living in counties with no abortion provider.

“Mississippi has always been a market leader in anti-abortion laws, so I’m not surprised it’s come to this,” said Jenny Ma, a senior staff attorney for the Center for Reproductive Rights working on the Dobbs v. JWHO case. “The 15-week ban is part of a 25-year campaign to eliminate the constitutional right to abortion. This has been a very targeted, intentional approach by anti-abortion legislators in Mississippi.”

This has been a very targeted, intentional approach by anti-abortion legislators in Mississippi.Jenny Ma, Center for Reproductive Rights

Anti-abortion organizations and lawmakers have been successful in their campaign against abortion access. There are currently a dozen abortion restrictions in Mississippi, with several others caught up in court challenges.

And lawmakers in the state have not been shy about their ultimate goal: to make Mississippi abortion-free.

“There’s only one abortion clinic in Mississippi. I hope this measure shuts that down,” Republican state Sen. Merle Flowers said in 2012 while pushing for a restriction requiring people to undergo an ultrasound test before getting an abortion.

Another lawmaker, GOP state Rep. Sam Mims, at the time said that Mississippi is “historically one of the strongest pro-life states in the nation.” Legislators backing the abortion restriction, he said, aimed “to cause fewer abortions, so if the clinic in Jackson had to shut down, then I think it is a positive day for the unborn.”

After voicing support for a particularly draconian abortion restriction, then-Gov. Phil Bryant (R) famously said: “As governor, I will continue to work to make Mississippi abortion-free.”

Those officials and others are “absolutely” in conversation with anti-abortion organizations, said Ma. The anti-abortion group Americans United for Life has applauded Mississippi legislators for closing six out of the state’s seven clinics in the last decade. The group has drafted legislation for abortion restrictions that anti-choice lawmakers have introduced.

Two Decades Of Abortion Restrictions At The Pink House

JWHO, fondly referred to as the Pink House for its bright pink exterior, first opened its doors in 1995 and provides care to around 3,000 patients a year. The majority are Black women, poor women and teenagers. Although the state currently allows abortions up to 20 weeks, JWHO only has the resources to provide abortions up to 16 weeks. Anything beyond that requires a dilation and evacuation procedure, known as D&E, which brings more costs and paperwork that the clinic simply doesn’t have the resources for.

Brewer said the 15-week limit would have severe consequences for patients. JWHO sees about 15 or 20 people a month who are 15 weeks pregnant or more, she said. And any other clinic that would open in Mississippi in the future would lose a five-week window to perform the procedure.

In 1992, Mississippi had eight abortion facilities. One by one, seven of them closed after the 1992 Supreme Court decision in Planned Parenthood v. Casey, which ruled states were legally allowed to restrict abortion access as long as it did not impose “an undue burden” on patients. Using the Casey decision, Mississippi abortion opponents and lawmakers pushed targeted regulation of abortion providers, or TRAP laws, under the guise of protecting women’s health.

The ruling gave anti-abortion advocates the tool they had been looking for to shut down access to abortion care. And it worked. By 2014, Mississippi had two abortion facilities and one clinic. Today, there’s just the Pink House.

“These TRAP laws are designed to shut clinics down and, unfortunately, in states like Mississippi, they have been successful,” said Ma. “These laws have made it impossible to sustain a clinic and for patients to access care.”

Anti-abortion protesters stand outside the Jackson Women's Health Organization clinic and shut down part of the street on Sept. 22, 2021.  (Photo: via Associated Press)
Anti-abortion protesters stand outside the Jackson Women's Health Organization clinic and shut down part of the street on Sept. 22, 2021. (Photo: via Associated Press)

Brewer and her staff at the Pink House have seen it all. Less than a year after JWHO opened, Mississippi’s second TRAP law passed, forcing abortion providers to hand out pamphlets explaining the medical risks of abortion. One of the cited dangers was an increased risk of breast cancer, which has since been disproved. The clinic is still legally required to hand out these scientifically inaccurate pamphlets today.

By the early aughts, the ripple effect from the Casey decision emboldened many abortion opponents. In 2003, the Mississippi state legislature passed a law that prohibits any public funding, including Medicaid, from being used for abortion care. That disproportionately impacts low-income people, who are the majority of abortion-seeking patients.

In 2007, lawmakers passed what is now known as a trigger law: legislation that immediately outlaws abortion if Roe is overturned. Mississippi is one of 12 states that have trigger laws on the books ahead of the Dobbs v. JWHO case.

“When we first started to see trigger bans, it was more like an intent statement, a positioning of the legislature,” said Elizabeth Nash a principal policy associate at Guttmacher Institute, a research and policy organization that supports abortion rights. “The idea of abortion rights being overturned felt very far away at that time. Now, it’s a very different situation.”

If Roe v. Wade is overturned, people need to understand that if you’re already suffering, taking something away does not make the suffering go away. It increases the suffering. And that’s what’s gonna happen here.Shannon Brewer, Jackson Women’s Health Organization

The 2007 law also mandated parental consent for minors seeking abortions, and required an ultrasound that directed physicians to ask patients if they’d like to hear fetal activity or see a printout of the sonogram.

By 2018, the state legislature had passed a law requiring that abortion physicians to be board-certified OB-GYNs ― an extreme measure in the context of other state physician requirements ― and that they have admitting privileges at local hospitals. (A U.S. district judge blocked the state from enforcing the law’s admitting privileges provision after JWHO and the Center for Reproductive Rights sued.)

Several other restrictions were later put in place, like a requirement for counseling and a state-mandated 24-hour waiting period between consultation and the procedure.

When Mississippi’s 15-week abortion ban was passed in 2018, it was the earliest abortion ban in the country. Although other states have more extreme laws in place now, such as Texas’ six-week ban, Mississippi set the stage for even more aggressive attacks on reproductive rights.

‘The Ban Is Racist, It’s Classist’

The political warfare over abortion rights often disregards what the fall of Roe would actually mean for women and birthing people in the U.S.

“If Roe v. Wade is overturned, people need to understand that if you’re already suffering, taking something away does not make the suffering go away,” Brewer said on the call with reporters. “It increases the suffering. And that’s what’s gonna happen here.”

It’s impossible to ignore the history of systemic racism in Mississippi when discussing access to abortion and other reproductive health care. The state has the highest poverty rate in the country, and already 75% of abortion patients in the U.S. are low-income. Mississippi also has the worst maternal and infant mortality rates, especially for Black mothers and infants, making it 75 times more deadly to carry a pregnancy to term than to get an abortion.

“Mississippi has a long history of coercive reproductive control measures going all the way back to slavery, during which Black women endured incredibly brutal sexual violence and were forced to carry and raise children against their will,” said Ma. “That’s the seed here. That’s the history behind all of this.”

A 15-week ban, whether it overturns Roe completely or tinkers with the gestational limit, will have devastating consequences. And those consequences will be disproportionately felt by Black women and poor women ― not just in Mississippi, but throughout the country.

“The ban is racist, it’s classist,” said Brewer. “People who have the means to travel and go anywhere to get an abortion, those are the ones who won’t be affected. But the poor women are going to be the ones affected by this. They’re going to be pushed further and further into poverty.”

Texas Ban Is A Preview Of What’s To Come

Even though the Pink House is the only abortion provider in Mississippi, the U.S. Southeast is so starved for abortion care that about 50% of the clinic’s patients come from out of state. Brewer and her staff have seen a flood of people from Texas since Sept. 1, when that state banned abortion at six weeks and deputized private citizens to enforce the law.

Although it’s only been in place for a little over two months, Texas’ abortion restriction has already had deeplydetrimentaleffects on people seeking abortions. Many are leaving Texas to get abortions, while less-privileged people are being forced to give birth. Abortion clinics in bordering states like Oklahoma and New Mexico are overwhelmed with Texas patients, leaving clinic staff extremely overworked as they try to accommodate in-state patients and the flood of out-of-staters.

Before Texas’ ban went into effect, JWHO was open two to three days a week. Since September, the clinic has been open five to six days a week and the protesters outside the front doors have doubled, Brewer said. Now, around a quarter of Pink House patients are from Texas.

The Texas abortion restriction is a preview of what’s to come if the Supreme Court overturns Roe: abortion clinic desserts that force people to either travel across state lines or carry an unwanted pregnancy to term.

“These patients are calling, panicking, because they don’t know what to do,” Brewer said. “They’re calling surrounding states and they’re all booked up for three or four weeks due to the influx of Texas patients. That’s just one state that did that. Imagine if the Supreme Court turns everything over to the states and says that any state can ban abortion.”

This article originally appeared on HuffPost and has been updated.

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