Paul, Weiss Files Supreme Court Brief in Mississippi Abortion Case

As reported by The New York Times, CNN and other major media outlets, Paul, Weiss and co-counsel the Center for Reproductive Rights have urged the U.S. Supreme Court to uphold Roe v. Wade and reject a Mississippi state law banning abortion prior to viability. We represent the Jackson Women’s Health Organization—Mississippi’s last remaining abortion clinic. In our brief filed on September 13, we asked the court to affirm our 2018 district court victory striking down Mississippi’s law banning abortion after 15 weeks, as well as our 2019 Fifth Circuit victory upholding the same.

The Times has called Dobbs v. Jackson Women’s Health Organization “the most important abortion case in decades.”

That the Supreme Court agreed to hear Mississippi’s appeal of the case surprised many court watchers given that the law is facially unconstitutional and no lower courts ruled otherwise. Our brief thus argues that Mississippi’s arguments for enacting its 15-week ban, also known as Mississippi House Bill 1510, amount to a request that the court “scuttle a half-century of precedent and invite states to ban abortion entirely.” The Supreme Court has repeatedly reaffirmed its position that states cannot prohibit abortion until viability, usually around 24 weeks. In particular, the court reassessed Roe v. Wade in 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey, in which it confirmed that a woman’s right to terminate a pregnancy before viability is “a rule of law and a component of liberty we cannot renounce.”

For that reason, we argue, the court’s judicial legitimacy in the eyes of the public is also at stake. Rather than overturning long-held precedent, which would damage the integrity of the court, the justices should adhere to the doctrine of stare decisis—the Supreme Court’s policy of refraining from overturning its own decisions. Stare decisis serves to protect the bench from politicization and instills public confidence in the judicial process, our constitutional system of government and the stability of all of our laws. “Unless the Court is to be perceived as representing nothing more than the preferences of its current membership, it is critical that judicial protection hold firm absent the most dramatic and unexpected changes in law or fact,” the brief says. “All the more so where, as here, the Court has already thoroughly reconsidered and reaffirmed the right at issue.”

Our brief also argues that Roe should not be overturned because generations have come to rely on the availability of safe and legal pre-viability abortion. Nearly 30 years ago, Casey drew a direct link between women’s reliance on the availability of a legal abortion and their ability to participate fully in the economic and social life of this country. All these years later, that is only more true. The brief makes the point that any decision by the court that does not fully uphold Roe and Casey “would shatter the understanding women have held close for decades about their bodies, their futures, and their equal right to liberty.”

The Paul, Weiss team includes, among others, litigation partner Claudia Hammerman, counsel Aaron Delaney and Caitlin Grusauskas, and associates Shane Avidan, Heather Milligan, Samantha Weinberg, Melina Meneguin-Layerenza, Hilary Oran, Clare Tilton, Daniela Lorenzo, Kelsey Sweeney, Amanda Valerio, Caroline Williamson, Shimeng Simona Xu, Tatiana Laing and Sander Saba.

» read the brief