Mississippi argues that abortions are no longer necessary because women can have successful careers now

There have been past challenges to Roe, the pivotal 1973 Supreme Court case which determined that women in the U.S. have a constitutional right to decide to have an abortion, but the threat has never been this explicit. The current court, with a 6–3 conservative majority, appeared to indicate during Wednesday’s hearing that they were open and likely to reshape the precedent that governs laws around abortion. 

And while much of Mississippi’s argument hinges on the concept of viability, privacy, and state’s rights, state attorneys are also focusing on the idea that women today “can have it all,” that pregnancy does not disrupt her career to the same extent that it would have in the 1970s when Roe was heard. 

“In 1973, there was little support for women who wanted a full family life and a successful career. Maternity leave was rare. Paternity leave was unheard of. The gold standard for professional success was a 9-to-5 with a corner office,” Mississippi’s Attorney General Lynn Fitch said in a statement. “In these last 50 years women have carved their own ways to achieving a better balance for success in their professional and personal lives. By returning the matter of abortion policy to state legislatures, we allow a stunted debate on how we support women to flourish.”

In a brief filed ahead of the hearing, attorneys for Mississippi 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.”

Abortion, they argued, didn’t have much to do with the progress women have made in society since the ’70s. 

“It may be possible to claim anecdotally that a particular woman’s abortion seemed to preserve her opportunity to pursue a particular job or degree,” wrote 240 female scholars and members of anti-abortion groups in an amicus brief to the court. “But it is impossible to claim that abortion access is specially responsible for the progress that American women have made.”

Justice Amy Coney Barrett also introduced a line of questioning on Wednesday that suggested an unwanted pregnancy wouldn’t burden a woman so long as she could give the child up for adoption upon its birth.

“Roe and Casey emphasize the burdens of parenting. And insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy. Why don’t the safe-haven laws take care of that problem?” said Barrett, who has seven children.

“It doesn’t seem to follow that pregnancy and then parenthood are all part of the same burden,” she said.

The U.S. is one of only six countries in the world without paid parental leave, and the only wealthy nation without it, according to Bloomberg. About 70% of Mississippi families are currently unable to afford childcare, according to the U.S. Treasury. Research from the Center on the Economics of Reproductive Health finds that abortion bans and targeted restrictions on abortion providers (TRAP) laws cost local economies $105 billion each year due to reduction of labor force participation and earnings among women.

Still, during almost two hours of oral arguments, the six conservative Supreme Court justices appeared comfortable with the idea of the Mississippi law. 

“You’re arguing that the Constitution is silent and, therefore, neutral on the question of abortion?” Justice Brett Kavanaugh asked a lawyer for Mississippi. “In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process?”

The Mississippi case in front of the court revolves around a 2018 law, the Gestational Age Act, that bans nearly all abortions in the state after 15 weeks. The Supreme Court has never before allowed states to ban abortion before 24 weeks, when fetuses are typically able to survive outside the womb.

If the court overturns Roe, 26 states (including Mississippi) would implement near-complete bans on abortion, according to estimates made by the Guttmacher Institute, a reproductive health and rights research organization. 

A decision from the court is expected by this summer.