Supreme Court Takes Up Biggest Abortion Case in a Generation
This week the Supreme Court agreed to hear the case Dobbs v. Jackson Women’s Health, opening the door to potentially overturn the infamous decisions in Roe v. Wade and Planned Parenthood v. Casey. The case before the Court involves a 2018 Mississippi law (Miss. Code Ann. §41-41-191) that, with limited exceptions, prohibits abortions after 15 weeks. When signed into law, the Mississippi governor stated, “I am committed to making Mississippi the safest place in America for an unborn child, and this bill will help us achieve that goal…We’ll probably be sued here in about a half-hour, and that’ll be fine with me. It is worth fighting over.”[1]
The Court will only consider Question 1 in the petition which is: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” This question goes to the heart of the Roe decision, which was essentially the legalization of abortion by the judicial branch. Roe “found” the constitutional “right” to abortion in the roots of the first, fourth, fifth, ninth, and fourteenth amendments. Since the right to privacy is not explicitly stated in the Constitution, they derived this understanding from almost a century of case precedent involving privacy. While the Court may have been correct in that privacy should include the matter of bodily autonomy, for which it stands firmly on a mountain of supporting case law, it blatantly ignores the clear and scientifically supported fact that the child inside the mother’s womb is wholly and completely another living person.
In addition to “finding” the right to abortion in the Constitution, Roe also directly addresses pre-viability abortions by stating that viability is the “compelling point” for state interest because “presumably” the child would be capable of having a “meaningful life outside of the mother’s womb.”[2] In the Justices' attempt to justify the killing of unborn children at pre-viability, they chose to ignore the reality of a living child in the womb and instead viewed it as “the potentiality of human life” that “may become a child.”
What makes hearing Dobbs different from its abortion predecessors is the forced specificity on pre-viability. It will require the Court to face the fact of when life begins. The impact of this case will be monumental. No matter which direction it goes, it must directly respond to the reality of life in the womb.
Overturning long-standing Court precedent is rare and difficult, but not unheard of and certainly not impossible. In reaffirming the 1973 Roe opinion, Planned Parenthood v. Casey (1992) laid out considerations to test whether overruling the prior decision would be consistent with the rule of law. Of these considerations, the most notable here is, “whether facts have so changed, or come to be seen differently, as to have robbed the old rule of significant application or justification.” (emphasis added). Given the significant advancements in medical technology that have, among other things, allowed us to see 3-D ultrasounds of babies at very early stages, and to keep very premature babies alive outside the womb, by the Court’s own standard it ought to abandon its abortion precedents.
This case now poses the most direct challenge to abortion since Casey in 1992 and therefore could impact the lives of millions of unborn children. In the words of Governor Phil Bryant, “It is worth fighting over.”
[1] https://www.npr.org/sections/thetwo-way/2018/03/19/595045249/mississippi-governor-signs-nations-toughest-abortion-ban-into-law
[2] https://www.law.cornell.edu/supremecourt/text/410/113