NY Times: “In the Supreme Court petition Attorney General Fitch filed in June 2020 (that is not a typographical error; it took the justices 11 months simply to decide to hear the case), she was coy about what she was really asking. “To be clear,” she told the court, “the questions presented in this petition do not require the court to overturn Roe or Casey.” She did concede, but only in a footnote, that the case might prompt a more conclusive outcome: “If the court determines that it cannot reconcile Roe and Casey with other precedents or scientific advancements showing a compelling state interest in fetal life far earlier in pregnancy than those cases contemplate, the court should not retain erroneous precedent.”
The tone is completely different in the state’s brief on the merits, filed last week in advance of the argument the Supreme Court will hold this fall. “Roe and Casey are egregiously wrong,” Ms. Fitch asserts. The case for overturning them is “overwhelming.” The two precedents have not only “proven hopelessly unworkable,” but “have damaged the democratic process, poisoned our national discourse, plagued the law — and, in doing so, harmed this court.”
What might account for such a dramatic change in Mississippi’s statements? One reason that jumps to mind is that the court that will decide this case is not the court Attorney General Fitch needed to persuade when she first approached it last summer. There’s little doubt Justice Ruth Bader Ginsburg’s death last September and her replacement by Justice Amy Coney Barrett has flipped the court on abortion, at least to some extent. It’s hard to remember that it was only last summer that Chief Justice John Roberts added his vote to those of what were then four liberal justices to strike down Louisiana’s law requiring hospital admitting privileges for doctors who perform abortions. If there was a strategic reason to mince words in a petition filed then, there is none now.”