The Supreme Court will hear arguments Dec. 1 in what some are saying is the biggest abortion-related case of the past four decades.
Dobbs v. Jackson Women’s Health Organization could result in the overturning of Roe v. Wade and the returning of power to the states to set their own abortion laws, as they did prior to the high court’s 1973 ruling in Roe.
“I feel very confident that we’re going to win,” Mississippi Attorney General Lynn Fitch says.
Fitch, a Republican, has filed briefs with the Supreme Court asking the justices to deliver “strong clarity” on the issue of abortion in their ruling.
The high-profile case goes back to a Mississippi law passed in 2018, which restricts abortions after 15 weeks of pregnancy. Days after the bill passed, Jackson Women’s Health Organization, the state’s only abortion clinic, filed a lawsuit seeking to block the law, which was enjoined by a lower court and is currently in abeyance.
Fitch joins “The Daily Signal Podcast” to explain the significance of the case and what will happen to abortion laws across the country if the court upholds Mississippi’s law.
We also cover these stories:
- President Joe Biden addresses the U.N. General Assembly for the first time since taking office.
- Homeland Security Secretary Alejandro Mayorkas again claims the American border is closed.
- Senate Majority Leader Chuck Schumer, D-N.Y., urges the Biden administration to stop deporting the growing number of Haitian migrants arriving on the southern border.
Listen to the podcast below or read the lightly edited transcript.
Virginia Allen: It is my honor to be joined by Mississippi Attorney General Lynn Fitch. Attorney General, thank you so much for being here.
Mississippi Attorney General Lynn Fitch: Thank you. It’s such a pleasure to be here with you, and the opportunity to have the discussion about the upcoming case. And I appreciate you having me on.
Allen: Well, this is such an important conversation to be having. The Supreme Court has agreed to hear a Mississippi case called Dobbs v. Jackson Women’s Health Organization. This case actually goes back to a Mississippi law, which was passed in 2018. So let’s talk a little bit about that law for a moment. What did it do and why was it passed?
Fitch: We had great insight from our elected leaders there at the Legislature, and then signed by our Gov. Phil Bryant. And so they had insight to having a 15-week abortion ban. And they passed it and it percolated along and it was stayed all the way through, unfortunately. So when we were able to get it to the United States Supreme Court, we were delighted that we filed for cert. And then when it was granted, we were thrilled that they would look at the question, “Is this a state’s interest?” Which it is. Or, how would they go along the lines and look at the question of viability?
So this case was there prior to me getting there. And when we looked at it, we were like, “Absolutely, we’re going to do everything we can to push this case along.” And again, couldn’t be any more excited the day that it came down and said, “We’re taking the Mississippi, the Dobbs case is moving forward.”
I always say, it will no longer be the Roe v. Wade case, it will be the Dobbs Mississippi case that will be taught from here forward. So we’re very excited, very confident about the Supreme Court hearing. The case, they just announced today that they will hear oral arguments on Dec. 1.
Allen: That’s a big deal. I saw that news come out and I know everyone’s been asking, when are these arguments going to take place? So now we know, Dec. 1. Obviously, all over the country, people are weighing in. They have very strong opinions on this case. For the folks of Mississippi, what are their views? This was their policy first. What do they think about this law?
Fitch: Mississippians are absolutely delighted that we’ve been able to move this case and to get it to the United States Supreme Court. Because remember, this actually goes back to states’ interests. So the elected officials, the governor that signed it into law, that’s the will of the people. So for the will of all Mississippians, again, an exciting time in history for us to be able to move forward on behalf of all Mississippians. So very positive, very well received.
Of course, you always have the folks that are going to be pushing against, but they’ve just not understood. My job is to protect—with my team—the sanctity of life, preserve the dignity of all, which includes this very important case. And I’ll tell you, when it came down in May, we’d been sitting there on the list from the United States Supreme Court, and it was just thrill, delight, excitement, joy when they, on a Monday morning, decided they would hear the Dobbs case.
Allen: And how did that happen? How did this case make its way up to the Supreme Court? What was that process?
Fitch: After it had been stayed numerous times, then we filed for a petition for cert to the United States Supreme Court when I got there, and we were thrilled when we made it to the list. Because the United States Supreme Court will keep a list of cases that they are considering taking up. And so it sat there for a number of weeks. … Normally they will, on Fridays at lunch, they will say, “We’re taking these cases up.” And so every Friday we’d get excited, and nothing. And so on a Monday morning in May, they opted to take this case.
So again, we have been so excited, been very strategic about how we’ve been moving forward with this case. Partners have been awesome. Again, this is a case that is not only impactful, certainly in the state of Mississippi, but for people all across our country. Because we’re about to touch a lot of different lives through this case. Be it the mothers, be it those babies. And then again, how do we have the discussion to empower them all the way through their pregnancy, and then as those precious children are born?
Allen: Yeah. Talk a little bit more about that, if you would, the significance of this case. Because this is really the biggest abortion case to go to the Supreme Court since 1992, when the court heard Planned Parenthood v. Casey. Why is this such a big deal that they are taking this case up?
Fitch: Well, you have to think, this has been nearly 50 years since Roe v. Wade. And different times now, for sure. And this is not a constitutional right. If you just do a strict look at the law, this is a state’s right. But what was so different back in 1973? Well, back then you had to really make some choices between whether you’d have children or whether you might be a professional female going into the working scope.
But look, the medicine has changed now. Oh, it’s so different than it was in 1973. Women have changed, the opportunity to be in so many different areas and different jobs and different perspectives. And then the men have changed. The support from the men is totally different. And then certainly protecting the integrity of the medical community. So that’s why we looked at it from all those different facets and said, “We need to have the conversation.”
I’m so honored and so humble to serve as the first female attorney general for the state of Mississippi. And so as a single mom of three, I’m a believer in what we are doing, why we’re doing it, and an example of how we can achieve and still have three wonderful children and still maintain and act on behalf of the state of Mississippi.
Allen: Yeah, yeah. That’s powerful. I think anytime when you have that personal buy-in and you recognize personally, this policy is so important, that is a wonderful, wonderful thing. So thank you for your leadership.
In looking at this specific case, and what exactly the Supreme Court is looking at here, the Supreme Court has said, “What we are considering is whether all pre-viability prohibitions on abortion are unconstitutional.” If you would, just explain exactly what is meant by pre-viability prohibitions on abortion.
Fitch: So, if you just take the question of viability—and again, as things have changed in 50 years, you can see through medical technology and advances, these unborn babies … [are] much more viable now earlier than they were 50 years ago when Roe was decided. But the thing you have to take into consideration, too, those were very blurry lines. They just changed depending on which was looking at them. So you never had any strong, firm lines, and so every time you’d get a different court, and that court would set the precedent.
And there’s really no complete understanding of viability. When did it come into play? And so all you have are a bunch of different courts trying to come up with this very fuzzy line, which they’ve never been able to achieve. So again, you’ve got a bunch of laws that are just all tangled and we don’t have any clear direction.
And when you really look at it, this whole case is about the rule of law, because this is about the rule of law in each state. We elect legislators, we elect governors, and it’s their job to protect the interests of people that they represent. So they must come forward and enact laws that they think are to the benefit of those that they represent. They’re acting in the best interest, they’re creating a variety of different laws that they believe are protecting the people within their state, and particularly for us in Mississippi.
So they are accountable to the people of Mississippi, and they enact the laws. And so we shouldn’t have courts, in so many different muffled and tangled up ways, that decide who and what, and when, how an abortion should be placed. And so for us, it’s all about giving it back to the states. That’s where the real rights lie. And I think this is a true argument that they will return to the states. Again, it’s not a constitutional issue. It’s not strictly set through the Constitution to do that. It is actually a true rule of law.
Allen: So then truly how much power would be returned to the states? Would a state be able to completely ban abortion, for example, if the Supreme Court rules in Mississippi’s favor in this case, or for a state that is more to the left, would they be able to open abortion up even more broadly if they wanted within their own borders? What would be the limits of that?
Fitch: That’s a great question. The way the parameters would probably come down would certainly signify how each state can move forward. But if they’re true states’ interest laws, then they are subject to making those laws that they fit to their respective states.
I think you definitely will see a variety of laws. I think you’ll see certainly very conservative states that will follow suit, that will want to be protective of the unborn, protective of the mothers, protective of the medical profession, but it will certainly give those rights back to those other states as well.
Allen: Yeah, and for a state like Texas that we’ve seen … they’ve just filed and they’ve just made law that prohibits abortion after six weeks, and we’ve already seen major pushback on that, how would this case potentially affect Texas?
Fitch: … I’ve gotten a number of different issues that people thought the Texas case just overrode the Mississippi case, when in fact it did not. And for us, we’re actually asking that Roe v. Wade be overturned. That Texas case is a different angle, and they’ve certainly allowed that to go forward from the United States Supreme Court. It certainly is their state’s interest that they’ve chosen with the six weeks, the heartbeat, and they can proceed along those lines. So I think it gives great value and it adds to the importance of each state to be able to signify which laws represent, they think, the best for the different people that live across their states.
Allen: Yeah. Now, we have recently seen from the Supreme Court what some people are calling sort of middle rulings, where the court rules and it doesn’t really address the larger issue at hand. So are you confident that we’re going to see the Supreme Court give a really clear and direct ruling on this case?
Fitch: I feel very confident that we’re going to win. Our brief was written in such a manner. We really wanted to be very forceful, be very bold on the issues, talk about the significance, how it affected, again, the women, the children, our medical profession. That was very key to us to really talk about, “Let’s protect and have the discussion on the sanctity of life.” Well, in order to do that, you have to have a holistic view. You have to talk about women and you have to talk about where they go in the future.
I feel like the court was ready because in selecting our case, this gives them the opportunity to have that very thorough discussion. So I feel very good, as does my team, that this is going to be a game-changer for our country, which is very exciting.
Allen: That is exciting. Now, I know, like you mentioned, you filed briefs in this case. Within those briefs, what are some of those things that you are specifically asking in the courts for and asking them to consider? And are there maybe previous rulings that you are expecting that the Supreme Court will bring up and use as they weigh in on their decision?
Fitch: Well, we hit the big cases head-on, the Roe v. Wade, the Casey v. Planned Parenthood, because those seem to be the ones that have the most discussion and the most reference to. And again, we have a number of different precedents all about, and some may reference Casey, some may reference Roe.
So to really hit it very strong and make the argument that those cases just really confuse things. They made the conflict much worse. They never gave any complete dialogue and had a real conversation about what are the rules regarding abortion. Instead, they set these very different rules for abortion, and then couldn’t adhere to those rules.
You have just time and time again, no clarity. So we’re asking for complete clarity. We want some direction. So how can we operate within our state? Because again, it should be returned back to the states.
And if the states don’t like what their legislature passes, well guess what? There’s accountability. You change that dynamic by going to the ballot box, and you can vote those individuals out if it’s not the will of the people. We don’t have that when we’re waiting for a variety of different courts to interpret whatever they think abortion rules are at that point.
So for us, it’s really looking for some strong clarity, some strong return, and really adhere to the rule of law.
Allen: Let’s say the Supreme Court, they hear the arguments, they make their ruling, and they rule in Mississippi’s favor, and essentially, Roe v. Wade is overturned. What happens the very next day? Because I think some of the narrative from the left is we’re going to see back-alley abortions again. And it’s this really grimace narrative that we hear from the left. What’s the reality there?
Fitch: I think the reality is you’re going to have a lot of celebration. I think there’s a great voice across our country that’s really been rising up. And you see that with all the people that have been certainly providing amicus briefs on a number of different groups—76 for our case. That the people out there were looking for a platform, looking for the opportunity to really voice support of changing Roe v. Wade and overturning it, and this is the first time we’ve ever gotten to that point—which is hard to believe it’s been 50 years and we’ve really not had the discussion.
So I think in the big scheme of things, the majority, you’ll see people are excited. People are happy. Again, the number of lives that will be saved, the women’s lives that will be changed forever in a positive way. The protection and the integrity of the medical profession will be intact.
I think there’s, again, some leeway, some platforms, some opportunities that don’t allow the narrative that the other side is trying to talk about. Back room and unhealthy, unsanitary situations. I don’t think it really goes along those lines, because if those are the very states that are upset about it, they can certainly be sure they put in great safeguards, if they choose to do so.
My expectation is that we’re going to have some very positive celebration that goes on, and it will change lives forever.
Allen: Well, the U.S., we are one of only seven countries that actually permits elective abortions past 20 weeks. Yet, like we say, we’re kind of hearing this narrative that sounds like it’s extreme for Mississippi to ban abortions after 15 weeks. We just saw this week that nearly 900 Democrat lawmakers from 45 states sent an amicus brief to the Supreme Court and asking the court to uphold Roe. What do you make of this opposition, largely from the left, to really put these parameters on abortion that they’re so advocating for in saying, “Abortion should be allowed far, far beyond 15 weeks”?
Fitch: Well, they truly didn’t have a basis in their argument. There was no real grounding of what their platform is, why they think it should stay intact. Theirs was more of a frantic, chaotic response that basically everything will come to an end, and that’s not true.
And the unfortunate part is they miss the real key, critical factor: children, the mothers, that things are much different than they were 50 years ago. And pull back and look, you don’t have to choose from going forward with your career, you don’t have to choose an abortion over what you would like to do in your life. And you can have your children and serve in whatever capacity that you want to. They never talked about women from the overall perspective.
And for us, we do. We really want to talk about the empowerment of women. We want to talk about how we lift up their children. And if they’re living in poverty, let’s change those dynamics. Let’s change the upskilling. Let’s go for the education. Because again, you have to look at the overall comprehensive facts for these individuals as they move forward in their next step in their journey in life, and I don’t feel like the other side has taken that into account. It’s very distinguishable, their brief and ours, because we do look at all that’s involved, including the medical profession.
Allen: That’s excellent. Now, we’ve heard that the arguments are going to be heard on Dec. 1. How quickly could we expect a ruling then from the Supreme Court?
Fitch: Well, I wish I could say it’d be very quickly. This is, as we said, such a change opinion that will come down. It’s going to be one that will be remarkable, and it will change the path forward. So I know the United States Supreme Court justices are going to put a lot of thought, there’s going to be a lot of information that goes into this opinion. I think the earliest we might get an opinion may be spring, or certainly by the end of June when their term ends.
Allen: Now, obviously, it’s impossible to know how each individual justice will rule. Do you have any insight or any thoughts on maybe what we might see from the nine justices?
Fitch: I feel very confident that we’re going to get a ruling in our favor, and I think we’ve got a number of justices that are just going to do the right thing. That they believe in doing the right thing. That they believe in protecting children, they believe in protecting women, and they certainly believe in protecting the medical community. And they’re going to look very hard at the advances in technology, the viability of these unborn children now. And they’re really going take a hard look at the sanctity of life. Because again, they’ve not been given that opportunity.
Even going back to Justice Ruth Bader Ginsburg, she even talked about there was just so much controversy going and so much conflict we never got a resolution on abortion. And she even said that in many of her filings. So I think this is a great opportunity for them to all step up and really want to do the right thing and really want to preserve life.
Allen: Attorney General Fitch, thank you so much for your time today. We really appreciate you being here and coming on the show.
Fitch: Well, thank you. It’s an honor. Thank you for having me.
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