Following on the heels of the draconian Texas anti-abortion law, a Mississippi law prohibiting all abortions after 15 weeks heads to the U.S. Supreme Court, with oral arguments beginning Dec. 1. This law, which passed in 2018, never went into effect because a federal appellate court blocked its enforcement. Advocates for reproductive rights fear the Mississippi case will lead to Roe v. Wade being overturned by the current ultra-conservative Supreme Court, thereby eliminating access to abortion in many states within a few months.
On the other hand, some legal experts believe that rather than overturning Roe v. Wade, the Supreme Court may take a narrower constitutional approach, barring states from preventing a woman from exercising her right to an abortion - something they expressly did not do with the Texas law. Here’s why: the Texas law doesn’t explicitly bar a woman from getting an abortion, but rather empowers citizens (rather than the state) to sue those who perform abortions or help a woman get one. This was clearly a strategic move, making court challenges more difficult. So, here’s the rub: even if the Mississippi law is ruled unconstitutional, anti-abortion laws like the one in Texas still may not be blocked. Other states appear to be following the Texas model - a Florida lawmaker recently introduced a similar anti-abortion bill that includes a provision for enforcement by private citizens.
The Biden Administration has sued Texas to bring the law’s “statutory scheme,” as U.S. Attorney General Merrick B. Garland has labeled it, to the forefront of the debate. In its suit, the U.S. Department of Justice argues that the law is unconstitutional because it allows Texas to essentially prohibit abortion - while technically complying with Supreme Court rulings that forbids such a ban - by empowering private parties to enforce the new restrictions.
The Justice Department also argues that the law essentially does an end run around the Supreme Court’s power to determine whether legislation and executive acts are consistent with the Constitution. The statement by the Attorney General Garland below is a chilling reminder that the Texas law goes beyond the issue of reproductive rights:
“This kind of scheme to nullify the Constitution of the United States is one that all Americans - whatever their politics or party - should fear. If it prevails, it may become a model for action in other areas, by other states, and with respect to other constitutional rights and judicial precedents.”
What is happening in states like Texas and Mississippi could be happening here in Pennsylvania if not for our current Democratic Governor and his veto power. But make no mistake - the GOP-controlled PA Legislature won’t stop attacking women’s reproductive rights and the country’s democratic institutions if we don’t elect a new Democratic governor and progressive Democratic women to the state legislature in 2022. And given that the U.S. Senate may be called upon to combat the various state anti-abortion laws by codifying abortion rights at the federal level, it’s crucial that we elect a Democrat to take over Republican Pat Toomey’s vacated U.S. Senate seat.
Finally, a number of Democratic state judges are on this November’s primary ballot. State judges are just as important in protecting the rights of all Pennsylvanians - so make sure we get out and vote!