A Mississippi law is compelling the courts to test the limits of permissible anti-abortion legislation, challenging the premise of Roe v. Wade.
Earlier this week a district court issued an eleventh-hour stay to block a Mississippi law designed to shut down the state’s last surviving abortion clinic. It’s the only one that has muscled through a spate of regulations aimed at making Mississippi “abortion-free,” in the words of Gov. Phil Bryant (R).
“The Court has considered the parties’ arguments and finds Plaintiffs satisfy the requirements for temporary injunctive relief to maintain the status quo until the newly framed issues can be more thoroughly examined,” wrote U.S. district judge Daniel P. Jordan III.
Bryant’s intentions are clear: make Mississippi the first state without access to abortion. But that’s a tricky legal proposition as a result of Roe v. Wade and Planned Parenthood v. Casey, the two key Supreme Court rulings that protect abortion rights.
The question before the courts is whether the new state law is legitimate under Roe and Casey. If so, pro-choice advocates fear it would threaten abortion rights protections nationwide
“In this case, Plaintiffs have offered evidence — including quotes from significant legislative and executive officers — that the Act’s purpose is to eliminate abortions in Mississippi,” wrote Jordan. “They likewise submitted evidence that no safety or health concerns motivated its passage. This evidence has not yet been rebutted.”
A hearing is scheduled for July 11 to determine if a preliminary injunction should follow. That’s a reasonably likely scenario since the Bush-appointed Judge Jordan issued the stay on the basis that the plaintiffs have “a substantial likelihood of success on the merits.”
Whether or not the case climbs up to the Supreme Court and puts Roe at risk of being overturned depends on the breadth of the lower courts’ ruling. But neither side is particularly keen on going down that road — at least for now.
“From a pro-choice perspective, the less the current Court does to define Casey, the better. From a pro-life perspective, they want to wait until there’s a clear shot at Roe v. Wade,” said Scott Lemieux, a political science professor at the College of Saint Rose.
Lemieux, who blogs at the left-leaning American Prospect, doesn’t expect Justice Anthony Kennedy, the swing vote on abortion issues, to give conservatives the big victory they’re looking for in this instance — although he isn’t sure about it.
“I think that Kennedy will not vote to overrule Roe explicitly, but he hasn’t voted to find an abortion regulation unconstitutional under the ‘undue burden’ standard since Casey and the smart money would be that this trend will continue,” he said. “The Mississippi case is such an extreme set of facts that it might be too much for even Kennedy, but I certainly wouldn’t be confident about that.”
Sahil Kapur is a congressional reporter for TPM. He previously covered politics and public policy for numerous publications including The Guardian and The Huffington Post. He can be reached at sahil [at] talkingpointsmemo.com.