Claire Cain Miller observes that Mississippi is engaging the the classic Republican bait-and-switch of arguing that reproductive rights are no longer necessary because of the assistance theoretically available to mothers that…Mississippi doesn’t offer and has no intention of ever offering:
In Roe, the Supreme Court said that an unwanted pregnancy could lead women to “a distressful life and future,” and in a 1992 case, Casey v. Planned Parenthood, that abortion rights were necessary for “women to participate equally in the economic and social life of the nation.”
On Wednesday, the court is hearing a case from Mississippi regarding a law banning most abortions after 15 weeks. In a brief to the court, lawyers for the state argued that those ideas about women’s lives had been obviated by “the march of progress.”
“In these last 50 years,” Mississippi’s attorney general, Lynn Fitch, said in a statement, “women have carved their own ways to achieving a better balance for success in their professional and personal lives.”
“The argument is: You can have it all,” said Mary Ziegler, a professor at the Florida State University College of Law. “They’re saying there’s no need because people like Amy Coney Barrett exist. Women can have big families and successful professional lives and there’s no need to choose.” (Justice Barrett, who joined the court under President Trump last year, has seven children.)
The argument serves another legal purpose, she said: If the need for abortion rights is “decades out of date,” as the state’s brief said, there is a justification for overturning precedent.
A large body of social science and policy research tells a more complex story. While women receive more education than men, are increasingly likely to be primary breadwinners and have made significant gains in public and professional life, becoming a mother still has a significant economic impact. So does being denied an abortion. The people most affected by abortion restrictions are poor women — who also have the hardest time combining paid work and child rearing.
In its argument, Mississippi’s lawyers wrote that “numerous laws enacted since Roe — addressing pregnancy discrimination, requiring leave time, assisting with child care and more — facilitate the ability of women to pursue both career success and a rich family life.”
These policies don’t exist or are weak, on a federal level or in Mississippi.
Republican interest in mothers is limited to laws that try to control sexuality. If they actually favored providing assistance to mothers, they would have done it already, and overruling Roe won’t do anything to change their minds.
This disingenuous contempt also ran through yesterday’s oral arguments:
Meanwhile, Justice Samuel Alito, insisting that religion has no role in the personhood fetish of his colleagues, pretended that the question of when life begins is purely secular, because some secular philosophers have weighed in on it. Roberts batted away all of the statistics about how unwanted pregnancies harm women economically with a simple “putting that data aside,” before he asked why 15 weeks isn’t enough time (the existing standard is 24 weeks) to terminate a pregnancy. Similarly, the court was happy to put aside the data around the health risks of forced pregnancy (it’s 75 times more dangerous to give birth in Mississippi than it is to have a pre-viability abortion, and this falls hardest on poor women of color) or the legitimate reasons some women can’t access an abortion before 15 weeks of pregnancy. Justice Clarence Thomas really seemed to want to know whether we could punish more women for fetal endangerment.
Amy Coney Barrett—the only person on the current court who has actually carried a baby—spent most of her time explaining that since the time of Roe, state “safe haven” laws have expanded to make it slightly easier to give up an unwanted baby for adoption. This, according to Barrett, somehow means it’s now fine to make women carry fetuses to term against their will. If the problem is unwanted parenting, she asked, “why don’t the safe haven laws take care of that problem?” This is an extraordinarily wrongheaded argument that evinces no understanding of what both carrying your rapist’s baby to term, and indeed carrying any unwanted pregnancy to term, actually means. The old “drop that 12-year-old’s baby at the fire station” era of callousness is what Roe and Casey were designed to protect against.
It almost surreal listening to a bunch of hacks put on the Court for the express purpose of ruining the lives of as many people who have unintended pregnancies as possible discuss weighing the interests of women and fetuses when it’s clear they believe the former don’t count at all. The callous arguments about adoption seem particularly appropriate coming from the crowning achievement of Donald Trump’s presidency.