If Roe v Wade was a landmark from the beginning, the 2012 Mississippi law requiring abortion providers to have a doctor-supervised transfer agreement with another hospital is truly a landmark.
A US Supreme Court March hearing on the law is now slated for Wednesday, 17 February. The actual hearing will likely be on Thursday, with arguments as a wrap-up on Monday afternoon. Mississippi’s attorney general, Jim Hood, will argue the case against Planned Parenthood in Jackson, a finalist for the Pope’s newest post. Watch the testimony live online Monday from noon through the legal decisions which will probably be finalized around 2030 local time.
However, this landmark case is being watched by reproductive rights advocates around the world. South Dakota, Mississippi, and Tennessee all attempted to pass similar law in 2017 (other Southern states including Alabama, Arizona, and Georgia have more recent, potential barriers to getting an abortion). North Dakota and Alabama already faced legal challenges from abortion providers last year, but an injunction was granted for all four.
While losing Mississippi would be a significant setback, the legal stakes are not great here. Yes, abortion providers will lose a regulated, oftentimes in-person option for patients. But Roe v Wade requires states to provide a regulated in-person option for their patients. The argument for the law focuses on the safety issue. Mississippi’s state-based clinics have been closed for more than a decade. The Supreme Court could extend the same consideration that the Court gave in the case of the specific procedure by referencing a case such as Republic v. Richards that established the guarantee of an abortion provider option. Or, the Court could focus on the procedure itself, an issue of state regulatory power that could give the Court some pause.
In both 2014 and 2016, a very similar case before the Supreme Court, Whole Woman’s Health v. Hellerstedt, provided hints of what could be an eventual ultimate victory for reproductive rights advocates. The state-by-state decision by Hellerstedt to restrict abortion rights was, by necessity, decided unanimously on an 8-0 vote by the Court, but that doesn’t mean the decision favored the state. In this closely watched case, the Supreme Court held that states could not “physically close” abortion clinics. However, in a 6-3 vote, the Court found that Texas could require clinic owners to have a doctor-supervised transfer agreement to continue doing business in the state. The Court explicitly called out the need for state-based clinics to have an outpatient option.
Interestingly, the justices ruled in a way that almost bore a striking resemblance to Roe v Wade. Shortly after the case, The New York Times had already begun covering the implications of this decision:
“The case held a particular significance because it suggested that the Texas statute, which prohibited abortion providers from performing most late-term abortions, might have made it all but impossible for doctors at facilities known as abortion mills to open in the state. “Its effect also might have deprived thousands of patients of a safe abortion option, since the state law would have required medical personnel at such facilities to follow strict rules when administering medication and surgical abortions.
This year, the Court could take a page from the Hellerstedt ruling. All nine justices could choose to overturn the law at a given time in the case; it could opt to set the precedent that states are not allowed to outright eliminate abortion rights. While this case presents the greatest possible chance of an adverse decision, it is only the first step in a difficult road. The Supreme Court could, as it often does with contentious rulings, decide to send the case back to the lower courts for a retooling. If states were not carefully watching their legal dust-ups, expect additional attempts at limiting abortion rights throughout the country.