Primary issues: Abortion rights, mass incarceration
Oral Arguments: December 1, 2021. Arguments will be livestreamed at 10AM. You can listen here.
WLP’s Role in the Case: WLP joined an amicus curiae (“friend of the court) brief filed by National Women’s Law Center supporting Jackson Women’s Health Organization.
Case Overview
Dobbs v. Jackson Women’s Health Organization (JWHO) is a dispute between Thomas Dobbs, state health officer of the Mississippi Department of Health, and Jackson Women’s Health Organization (JWHO), on behalf of itself and its patients. At issue is a 15-week abortion ban signed into law by Mississippi Governor Phil Bryant in March 2018.
JHWO is the last abortion provider left in the state of Mississippi.
How This Case is About Roe
Under the 1973 landmark decision Roe v. Wade, all pre-viability abortion bans are unconstitutional. Viability is generally recognized to be approximately 24 weeks into pregnancy. As WLP attorney Susan J. Frietsche recently noted, the Court cannot simultaneously uphold the Mississippi 15-week ban and the premise, and promise, of Roe.
Though unimaginable just a few years ago, with this case, the Court will reconsider, despite nearly 50 years of precedent, whether a state law that prohibits abortions well before viability is still unconstitutional.
We don’t know if the Court will overturn or further undermine Roe, but abortion rights advocates are not optimistic. The best-case scenario is holding a line that has already been circumvented: The U.S. Supreme Court recently allowed Texas to enforce Senate Bill 8, a blatantly unconstitutional 6-week abortion ban that relies on citizen vigilantes for enforcement. (Justice Sonia Sotomayor called the decision “stunning” in a must-read dissent.)
Potential Implications of Dobbs in Pennsylvania
Roe has always been the floor for reproductive rights, meaning it is both fundamental to preserve and yet not enough to ensure equitable access. An onslaught of state-level abortion restrictions – a trend that escalated in 2010 and peaked this year has already pushed abortion care out of reach for a significant number of low-income people, especially Black and brown people, due to structural barriers and racism.
A map of abortion providers in Pennsylvania.
Abortion restrictions correlate with poor maternal health outcomes. Maternal health is already a public health crisis in the United States, which has the highest maternal mortality rate of any country with similar resources. This crisis is defined by severe racial disparities, with Black women suffering maternal mortality and morbidity at about three times the rate of white people. Last year, Pennsylvania published a report showing that maternal mortality increased more than 21% percent over five years in Pennsylvania, with Black women accounting for 23% of deaths and only 14% of births.
If the U.S. Supreme Court overturns Roe, abortion will be banned or further restricted in 22 states based on laws already on the books and anti-abortion lawmakers in the Pennsylvania Legislature will introduce and advance pre-viability bans. They already introduced a six-week ban and expressed excitement over the possibility of introducing a Texas-style six-week abortion ban.
In addition to being a public health crisis, banning abortion is also a mass incarceration crisis. As a recent report from the National Association of Criminal Defense Lawyers put it, “With the Supreme Court poised … to revisit Roe in the Mississippi case of Dobbs v. Jackson Women’s Health Organization, it is critical that the American people clearly understand the vast criminalization efforts – and the repercussions to so many of us – that are already well underway in many states across the nation.”
The Biggest Threat to Reproductive Rights in Pennsylvania: A Proposed Constitutional Amendment
Of the many abortion restrictions introduced in Pennsylvania so far this legislative session, the most dangerous of all is brand new: a proposed constitutional amendment.
Senator Judy Ward and Rep. Donna Oberlander recently issued memos proposing amending the Pennsylvania constitution out of fear that the Pennsylvania Supreme Court will rule, in litigation currently before the Court, that Pennsylvania’s ban on Medicaid coverage of abortion violates the Pennsylvania constitution’s ban on sex-based discrimination.
Such an amendment must pass two consecutive legislative sessions then go on a ballot before voters. The governor—whoever it is at the time—cannot veto it.
Stay tuned for updates and actions.
Women’s Law Project is a public interest law center in Pennsylvania devoted to advancing and defending the rights of women, girls, and LGBTQ+ people in Pennsylvania and beyond. As a non-profit organization, we can not do this work without you. Please consider supporting our work.
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