The woman behind Mississippi’s push to overturn Roe v Wade

State attorney general Lynn Fitch is bringing a direct challenge to abortion rights to the US Supreme Court, Alex Woodward reports

Thursday 02 December 2021 23:29
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In a July filing with the US Supreme Court, Mississippi’s attorney general argued that “the conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.”

That brief, from the state’s Republican Attorney General Lynn Fitch, signalled the most significant legal challenge to constitutional protections for abortion access in the US, a potential upset to more than 50 years of precedent, and the fulfilment of decades of campaigning and judiciary appointments from right-wing officials.

Ms Fitch, as part of a legal challenge to defend state law that bans most abortions after 15 weeks of pregnancy, has sought to overturn the landmark 1973 ruling in Roe v Wade, which effectively enshrined constitutional protections for a woman’s access to abortion care without excessive government intervention.

She also is challenging the ruling in Casey v Planned Parenthood, which upheld Roe and established a new standard that asks whether a state’s abortion law presents an “undue burden,” defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

The rulings in those cases have “damaged the democratic process, poisoned our national discourse, plagued the law – and, in doing so, harmed” the Supreme Court, Ms Fitch wrote in her filing.

On 1 December, the Supreme Court heard two hours of oral arguments in the case of Dobbs v Jackson Women’s Health Organization, in which a ruling may not only determine the legality of Mississippi’s law but also the fate of abortion access for millions of Americans.

A ruling is expected by June 2022.

Conservative justices now hold a majority on the high court, with three appointments under President Donald Trump alone. Justices signalled a willingness to uphold Mississippi law, though it remains unclear whether they will also undermine Roe and Casey entirely by allowing states to impose their own abortion bans at different stages of pregnancy.

That potential outcome would contradict the 1973 decision in Roe prohibiting states from banning the procedure before foetal viability outside the womb, at roughly 23 weeks.

A ruling overturning Roe would immediately or quickly ban most abortions in more than 20 states that have imposed such bans in anticipation of the high court’s move, forcing women who can afford it to travel hundreds of miles to safely access an abortion.

As the state’s top lawyer, Ms Fitch served as the face of a social media campaign promoting Mississippi’s case before the Supreme Court.

“When you strip away the political noise, the case is about the rule of law,” she said in the video, titled “Empower Women, Promote Life”.

The 2018 Mississippi law preceded her entry into office. She was sworn in as the state’s first woman attorney general in 2020.

The Washington Post’s The Lily reports that her father inherited Galena Plantation in her native Holly Springs, Mississippi “to raise his children in a simpler southern environment”; the retreat includes the one-time home of Confederate general and Ku Klux Klan grand wizard Nathan Bedford Forrest.

Her father also was the biggest donor to her first campaign for state treasurer in 2011. She served in the role for eight years before her election to the attorney general’s office.

In June, she replaced her in-house communications staffers with two out-of-state media consultants with national Republican ties, according to Mississippi Today, which reports that the Dobbs case could “catapult her political career.”

The 5th US Court of Appeals – among the most conservative courts in the country – struck down the Mississippi law, but the Supreme Court decided to hear the case after Mississippi’s appeal.

Ms Fitch has routinely argued that overturning abortion rights would “empower” women, no longer having to choose between a family and a career.

She has said that the precedent struck by Roe is “frozen in time” when there “was little support for women who wanted a full family life and a successful career.”

“By returning the matter of abortion policy to state legislatures, we allow a stunted debate on how we support women to flourish,” she said in a statement.

Roe and Casey “maintained that an unwanted pregnancy could doom women to ‘a distressful life and future’ … that abortion is a needed complement to contraception … and that viability marked a sensible point for when state interests in unborn life become compelling,” Ms Fitch wrote in her argument to the court.

“Today, adoption is accessible and on a wide scale women attain both professional success and a rich family life, contraceptives are more available and effective, and scientific advances show that an unborn child has taken on the human form and features months before viability,” she claimed in her filing with the court. “States should be able to act on those developments. But Roe and Casey shackle states to a view of the facts that is decades out of date.”

Justice Amy Coney Barrett – who was the third and final justice appointed by Mr Trump – made similar arguments on 1 December, pointing to “safe haven laws” that allow parents to surrender newborns without criminal prosecution.

Neither Ms Fitch nor Mississippi’s solicitor general have addressed the lack of adequate healthcare and access to services for pregnant people in their arguments, or the glaring racial disparities and poor health outcomes among lower-income communities in the state.

Mississippi’s maternal mortality rate is among the highest in the country, and the state’s infant mortality rate is the highest in the nation.

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Child care is largely unaffordable for nearly half of American families, according to the US Department of Treasury, including more than 70 per cent of families in Mississippi.

Among people seeking an abortion in Mississippi, 86 per cent require financial support, are on public insurance plans or are uninsured. The state is one of 12 that have not expanded Medicaid eligibility, locking out low-income residents from insurance coverage if they make too much money to qualify for Medicaid coverage but not enough to afford coverage through the federal insurance marketplace.

The US does not have a national parental leave policy. Nor does Mississippi. It also is the only state without a law guaranteeing equal pay. It has no hourly minimum wage, relying on the federal minimum of $7.25.

A group of more than 150 economists filed a brief intervening in the Dobbs case to refute Fitch’s arguments, pointing to a wide range of research measuring the impacts of abortion legalisation and access.

“Contrary to Mississippi’s assertion, for significant segments of the population, reliable and affordable contraception remains out of reach,” they wrote. “And for many women, affordable childcare is as illusory as employment policies that accommodate working parents.”

In her video promoting Dobbs, Ms Fitch characterises the state’s challenge to abortion rights as one that is about “the ability of the people through their elected leaders to decide hard things for themselves, and these are hard issues.”

She argues that state legislatures – which in Mississippi means majority white, Republican men over 50 years old – should ultimately be the decision-making bodies over abortion.

In her filings with the Supreme Court, she argued that there is no constitutional protections for abortion, and that state legislatures should have the authority to determine such laws.

“Nothing in constitutional text, structure, history, or tradition supports a right to abortion,” Ms Fitch writes. “A prohibition on elective abortions is therefore constitutional if it satisfies the rational basis review that applies to all laws.”

The rulings in Roe and Casey “are thus at odds with the straight-forward, constitutionally grounded answer to the question presented,” she said. “So the question becomes whether this court should overrule those decisions. It should.”

Julie Rikelman, litigation director for the Center for Reproductive Rights, told the Supreme Court on 1 December that “allowing a state to take control of a woman’s body … is a fundamental deprivation of her liberty.”

US solicitor general Elizabeth Prelogar argued that “the right is grounded in the liberty component of the 14th Amendment.”

“But I think that it promotes interests and autonomy, bodily integrity, liberty and equality. And I do think that it is specifically the right to abortion here,” she told the court.

Such rights are “not left up to state legislatures to decide whether to honor them or not,” she said.

The Jackson Women’s Health Organization clinic, at the centre of the Dobbs case, is Mississippi’s only abortion facility in the state.

Clinic director Shannon Brewer said a potential reversal of Roe would devastate her largely low-income patients, who would be forced to travel thousands of miles for abortion care.

“I’m sure some women would go somewhere else but the women we see barely make it here, and they live in the state,” she told reporters in a briefing on 1 December. “They can’t afford to jump on an airplane and fly somewhere. They can’t afford to spend two or three thousand dollars and get a hotel out of state.”

She added: “In Mississippi, where healthcare is already the worst, our education is already one of the worst, you can’t take stuff away from people and expect the situation to be better.”

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