On December 1st, the United States Supreme Court will hear oral arguments in one of the most important legal challenges to Roe v. Wade in our lifetimes. The Court will consider the constitutionality of a Mississippi law limiting abortion after 15 weeks gestation. Pro-life advocates and abortion supporters don’t agree on much, but there is one thing both sides can agree on, and that is the monumental importance of this case.
For the first time in nearly 30 years, the basic logic of the so-called “constitutional right” to an abortion—created by the Supreme Court in 1973—will be addressed by the Court head-on. Given the Court’s make-up today, it is more likely than ever that Roe could be overturned.
The case triggering this clash of constitutional perspectives is Dobbs v. Jackson Women’s Health Organization.
The Dobbs case is about a Mississippi law that limits abortions after 15 weeks gestation.
The State of Mississippi is defending its law against a legal challenge filed by the only abortion clinic in Mississippi, Jackson Women’s Health Organization.
The question before the Court is whether the state may constitutionally limit abortion before viability (the point in time at which a baby can live outside the womb with medical assistance).
Prior Supreme Court rulings, specifically Roe v. Wade and Planned Parenthood v. Casey, limited the power of the state to restrict abortion before viability.
In Roe v. Wade, the Supreme Court legalized abortion in all 50 states. It manufactured the right to an abortion out of thin air by loosely tying it to the 14th Amendment in the Constitution as a “liberty interest” in privacy.
In Planned Parenthood v. Casey, the Court determined that viability was the point in which the state’s interest in protecting the preborn baby was strong enough to intervene and limit abortion.
The question now is whether the constitutional logic of the previous Court holdings will stand.
There is no doubt the actions taken by the Court to legalize abortion in Roe were a usurpation of the democratic rights of the people.
Our country was founded on a separation of powers principle to protect the rights of the people. Foundational to the separation of powers is the ability of each branch of government (executive, legislative, and judicial) to keep each other in check, so no one branch becomes too powerful.
The holdings in Roe and Casey are clear violations of the separation of powers. It is not the role of the Supreme Court to legislate, and that is precisely what they did in those cases.
In fact, constitutional scholars on both sides of the debate agree that Roe v. Wade is bad constitutional law because the right to an abortion simply isn’t in the Constitution.
Pro-abortion legal scholars have admitted that “as a constitutional argument, Roe is barely coherent” and was a “very bad decision…because it is…not constitutional law and gives almost no sense of an obligation to try to be.”
So how might the Court overturn Roe?
First, the Court could leave the framework of Roe and Casey in place but essentially gut it by recognizing that states have interests that trump other rights and can restrict abortion before viability to protect preborn human life.
Second, and the route we hope they take, the Court could admit that Roe and Casey were bad constitutional law and should be tossed out. If a majority of the Court looks at the caselaw through the lens of a Constitutional originalist or a textualist (meaning they interpret the Constitution according to its original meaning), then it is much more probable that the Court could overturn Roe.
One thing is for certain, the Court didn’t have to grant cert and agree to review the case. There seems to be a consensus that the Court agreed to review the case so that it could say something different than what is already law.
Oral arguments should provide more clarity regarding where each justice stands. Click here to listen to live oral arguments at 10 a.m. ET on December 1, 2021.
A written decision is not expected until June 2022.
In the meantime, pray! This is a pivotal moment in American history and a truly significant case. This is the chance for America to right a grievous wrong committed against one of our most vulnerable populations—our preborn babies.
Photo from Shutterstock.