The Supreme Court released its opinion last week in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and ending nearly 50 years of federal governance over abortion policy. It was a historic moment, with Roe now joining Plessy v. Ferguson in the list of momentous u-turns in Supreme Court case law.
While the decision itself has drawn most of the media attention, another story deserves to be told: How did it happen? How did five decades of battling over one case finally come to an end? To answer that question requires looking to the source of that case, a small Southern state that defied the odds in an epic “David versus Goliath” legal battle.
With little fanfare or attention, Mississippi, the little state that could, showed the rest of the nation what can be done when just a few people believe passionately in their cause and are willing to labor to plant seeds years before harvesting.
Even as former President Donald Trump released a statement on the day of the decision noting that it was “only made possible because I delivered everything as promised, including nominating and getting three highly respected and strong Constitutionalists confirmed to the United States Supreme Court,” others at the state level were smiling broadly too. Their Herculean efforts went with little notice but paid off — big time.
Seizing the Opportunity
After decades of frustrating battles against an intractable Supreme Court, many legislatures had grown weary of spending time on pro-life legislation, but with the election of President Trump, pro-life advocates in Mississippi saw an opportunity to get a statement win. Jameson Taylor, then acting president of the Mississippi Center for Public Policy, decided to seize the moment and found early support with Mississippi House Speaker Philip Gunn, then-state House Judiciary Committee chairman Rep. Andy Gipson, and bill sponsor Rep. Becky Currie.
Taylor observed that Mississippi had passed a 20-week abortion ban in 2014 and a ban on dismemberment abortions in 2016. Neither had been challenged in court. Diane Deriz, the owner of Mississippi’s only abortion clinic (Jackson Women’s Health Organization) had called the 20-week ban “a totally irrelevant piece of legislation that I’m sure was aimed at the clinic. The clinic goes to 16 weeks, so what difference does that bill make?”
So, the question arose: “What would be a good next step?”
Identifying a Possible Opening
As the 2018 legislative session rolled around, the Supreme Court’s balance had not changed, with President Trump simply replacing Justice Antonin Scalia with Justice Neil Gorsuch. It was still a “Kennedy court,” defined by his determinant vote in the middle. Could Mississippi push that court to reconsider the vague “viability” rule that had been created in Planned Parenthood v. Casey (1992)? Would it survive the new “undue burden” standard the court had established to limit states’ regulation of abortion?
Taylor noted that Kennedy had written the decision in Gonzales v. Carhart (2007), which upheld the federal Partial-Birth Abortion Ban Act. Did Kennedy’s support in that case indicate a possible opening to push the viability standard?
Ultimately, Taylor decided it was time for Mississippi to “make a statement to set a new bar for what pro-life policy could look like in red states.” Even so, he concedes “the goal was not to try to completely overturn abortion, but to weaken the Roe/Casey framework.”
As a first step, he reached out to Denise Burke and Kellie Fiedorek, expert attorneys at Alliance Defending Freedom (ADF). Burke suggested model language that could build upon Mississippi’s 20-week abortion ban, which was still in place.
Research by ADF and others showed the United States had some of the most permissive abortion policies in the world — aligned most closely with nations such as China, North Korea, and Vietnam. Ultimately, they focused on a plan to try to limit abortion to the first three months, which would still allow a woman ample time to decide but also test the “undue burden” and “viability” standards established in Casey.
Poking the Court with a 15-Week Limit
As the bill took shape in the House, Currie emerged as the sponsor for what would become the 15-week ban bill, formally called “The Gestational Age Act” (H.B. 1510 – 2018). Currie, a licensed nurse, presented a strong defense of the bill to colleagues, recalling her experience holding a 15-week-gestation infant.
The bill itself amplified the medical evidence of life, noting that “at twelve (12) weeks’ gestation, an unborn human being can open and close his or her fingers, starts to make sucking motions, and senses stimulation from the world outside the womb.” Still, the bill limited abortion only after 15 weeks. It was, however, narrow enough to poke at the court and see what might happen.
The bill documented the state’s “legitimate interests from the outset of pregnancy in protecting the health of women” and “in protecting the life of the unborn,” citing Casey as support.
With support from Gunn, the House passed the bill (79-31), but it faced outside opposition in the Senate over criminal penalties against doctors. With an amendment to pivot to limited civil penalties, it was passed with support from Lt. Gov. Tate Reeves and sent to Gov. Phil Bryant. He signed it on March 19, 2018, putting into effect what was roundly called “the most restrictive abortion law in the nation.”
Lawyering Up
Within hours, the pro-abortion Center for Reproductive Rights filed a lawsuit on behalf of Jackson Women’s Health Organization, and the next day U.S. District Judge Carlton Reeves issued a temporary restraining order against enforcing the law.
Bryant was undeterred, saying a law “saving more of the unborn than any state in America” was “worth fighting over” in court. Gunn agreed the state was “absolutely” ready to take on the costs of a legal battle, because “I don’t know if you can put any value on human life.”
Even so, Reeves handed the state a stinging defeat, ruling in November that it “unequivocally” violated not only Supreme Court precedent but also the 14th Amendment. He wrote that viability must be determined by trained medical professionals, and the “established medical consensus” is that viability typically begins at 23 to 24 weeks after the pregnant woman’s last menstrual period – a rebuff of Mississippi’s attempt to regulate at 15 weeks.
Mississippi appealed to the Fifth Circuit, but the court ruled against it in December 2019. The opinion said, “In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability,” and “states may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions.” It was yet another setback.
Supreme Court’s Balance Swings
Along the way, though, a fortuitous turn of events had occurred. The Supreme Court balance had suddenly changed in late 2018 with President Trump’s replacement of Kennedy with Justice Brett Kavanaugh.
Then, just prior to leaving office in 2020, the balance swung further as Amy Coney Barrett was quickly confirmed to fill the seat that had been held by the deceased Justice Ruth Bader Ginsburg. In a blink, the law that had been designed to survive a “Kennedy court” was now headed into a completely different court, one that leaned conservative by a six-to-three margin.
In another fortunate turn, the law got a boost from within the state in 2019 when pro-life Republican Lynn Fitch took over as attorney general from Democrat Jim Hood, who had given the bill a lackluster defense. Fitch, a working mother, took a strong position in defending the law, calling Roe “egregiously wrong” and promoting the slogan “Empower Women, Promote Life.”
She authored numerous articles in the press defending Mississippi’s law, such as “Mississippi’s People Should Choose Its Abortion Laws.” Finally, the law had a solid defense team on its side.
Decision Time
On Dec. 1, 2021, the Supreme Court heard two hours of arguments in Dobbs v. Jackson Women’s Health Organization, the case to determine the fate of almost 50 years of abortion case law. Justice Kavanaugh asked, “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?”
Both Chief Justice John Roberts and Justice Samuel Alito questioned the viability standard, with Roberts commenting that, “Viability it seems to me doesn’t have anything to do with choice. But if it really is an issue about choice, why is 15 weeks not enough time?”
Justice Sonia Sotomayor, supported by Justice Elena Kagan, argued for the existing viability standard and admonished her colleagues, asking, “Will this institution survive the stench that this creates in the public perception, that the Constitution and its reading are just political acts? I don’t see how it’s possible.”
The full weight of the federal government stood against the state of Mississippi that day, with President Biden’s Department of Justice arguing on behalf of the abortion provider that the upholding of Mississippi’s law would represent “an unprecedented contraction of individual rights.”
The drama finally ended when the court released its verdict last week, and by a 6-3 decision both Roe and Casey were overturned. Justice Alito wrote for the majority that “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” The strategy envisioned five years earlier by pro-life advocates in Mississippi had played out better than ever imagined — with some divine twists along the way.
When the news broke on that Friday morning, Taylor simply commented, “Amazing. Praise God!”
History will record that Mississippi, the small and often overlooked state, led the way in protecting the lives of unborn children. And Behind it all was the little army of pro-life warriors who simply did what they could and never lost hope. Local action does indeed have national impact.
