Mississippi AG Fitch files brief with SCOTUS: Roe ‘shackles states to an outdated view’ of scientific fact

Supreme Court, Planned Parenthood

On July 22, Mississippi Attorney General Lynn Fitch filed a brief with the Supreme Court of the United States in the case of Dobbs v. Jackson Women’s Health Organization. This case deals with the state’s Gestational Age Act that protects preborn life after 15 weeks gestation. Slated to be heard during the Court’s term this fall, the Court is set to consider whether all pre-viability prohibitions on elective abortions are unconstitutional. “With this brief, we’re simply asking the Court to affirm the right of the people to protect their legitimate interests and to provide clarity on how they may do so,” said AG Fitch in a press release.

“A lot has changed in the five decades since Roe, yet it shackles states to an outdated view of facts and prevents them from protecting legitimate interests in the context of current science and culture,” said AG Fitch in a statement to Live Action News. “In my brief, I ask the Court to set things right and return abortion policy to the political branches where debate can flourish and the will of the people can be discerned at the ballot box.”


Fitch’s arguments in the case will challenge the idea of “viability,” which has been commonly understood as a specific gestational age; however, the idea of “viability” is fluid, subjective, and vague. It is so subjective, in fact, that some in the abortion industry have admitted that, for them, “viability” is an entirely arbitrary — and exploitable — concept.

Planned Parenthood abortionist Dr. Colleen McNicholas testified in 2019 that “viability is a complicated medical construct. There is no particular gestational age. There are some pregnancies in which a fetus will never be viable. There are a number of different factors that we think about when we’re considering if a pregnancy is or isn’t viable.” She added, “My practice includes abortion care through the point of viability, and as we previously discussed, that could be at any point.” (emphasis added)

In the brief, AG Fitch argues that a viability rule is an artificial line which has “no constitutional basis” and notes that since the Roe v. Wade decision in 1973, the gestational age marker for viability has shifted from 28 weeks to 22 weeks, thanks to medical advancements, which continue to improve.

Legislatures should be able to respond to those advances, which they cannot do in the face of flawed precedents that are anchored to decades-stale views of life and health,” the brief states. “At minimum, this Court should reject viability as a barrier to prohibiting elective abortions…” the brief also notes. “A viability rule has no constitutional basis, it harms state interests, and it produces other severe negative consequences.”

Protecting both mothers and their children

Directly challenging Roe‘s assertion of a “right to privacy,” Fitch’s brief states, “[A] right to abortion cannot be justified by a right of privacy or a right to make important personal decisions,” adding, “Nowhere else in the law does a right of privacy or right to make personal decisions provide a right to destroy a human life.”

“There are those who would like to believe that Roe v. Wade settled the issue of  abortion once and for all,” said Attorney General Fitch in the press release.“But all it did was establish a special-rules regime for abortion jurisprudence that has left these cases out of step with other Court decisions and neutral principles of law applied by the Court. As a result, state legislatures, and the people they represent, have lacked clarity in passing laws to protect legitimate public interests, and artificial guideposts have stunted important public debate on how we, as a society, care for the dignity of women and their children. It is time for the Court to set this right and return this political debate to the political branches of government.”

A second-trimester abortion restriction serves to protect the dignity of both women and their preborn child. The D&E abortion procedure used most commonly in the second trimester involves the limb-from-torso dismemberment of a living child in the womb, and recent research has shown that it is likely children can feel pain by the end of the first trimester.


READ: If SCOTUS upholds Mississippi’s abortion ban, women and babies’ lives will be saved

As Mississippi’s law states, “Abortion carries significant physical and psychological risks to the maternal patient, and these physical and psychological risks increase with gestational age. Specifically, in abortions performed after eight (8) weeks’ gestation, the relative physical and psychological risks escalate exponentially as gestational age increases.” In fact, at least one study found that for every additional week of gestation after eight weeks, a woman’s risk of death from an abortion increases by 38%. Other research showed that a later abortion carries a 91 times greater risk of death for a woman than a first-trimester abortion, noting that the risks of complications “increase exponentially with increasing gestational age.”

The Supreme Court has never recognized an absolute right to an abortion, and according to subsequent Court opinions since Roe, the Court has clearly stated that a state may act to protect the legitimate interests of the people.

The filed brief asserts, “While crediting States with important interests, Roe and [Planned Parenthood v.] Casey impede States from advancing them. Before viability the undue-burden standard has been understood to block a State from prohibiting abortion to assert those interests. And that standard forces a State to make an uphill climb even to adopt regulations advancing its interests.”

The brief states that “Many laws (largely post-dating Roe)  protect equal opportunity—including prohibitions on sex and pregnancy discrimination in employment, guarantees of employment leave for pregnancy and birth, and support to offset the costs of childcare for working mothers…. Casey gives no good reason to believe that decades of advances for women rest on Roe, and evidence is to the contrary.”

The solution, states the brief, is “to return the matter to ‘legislators, not judges,” adding, “This Court’s precedents wall off too many options and force people to look to the Judiciary to solve the abortion issue—which, 50 years shows, it cannot do…. The national fever on abortion can break only when this Court returns abortion policy to the States—where agreement is more common, compromise is often possible, and disagreement can be resolved at the ballot box.”

AG Fitch noted in her press release, “A lot has changed in five decades…. [W]omen have carved their own way to achieving a better balance for success in their professional and personal lives. By returning the matter of abortion policy to state legislatures, we allow a stunted debate on how we support women to flourish. It is time for the Court to let go of its hold on this important debate.” 

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