Calling Roe v. Wade and Planned Parenthood v. Casey “egregiously wrong,” the state of Mississippi threw down a gauntlet in its opening brief in what is sure to be the Supreme Court’s biggest abortion case of the court’s fall term.
In Dobbs v. Jackson Women’s Health Organization, a 2018 Mississippi law banning abortion after 15-weeks gestation, with exceptions for medical emergency and severe fetal abnormalities, was subsequently struck down as unconstitutional by the lower federal courts. The U.S. Supreme Court granted the state’s petition to hear the case and lawyers for the state filed their opening brief this week.
From the very first paragraph of the brief’s introduction, Mississippi Attorney General Lynn Fitch pulls no punches in declaring that the so-called constitutional right to abortion does not exist.
“On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight. Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational basis review that applies to all laws,” the brief reads.
Roe, of course, found a “right” to abortion in various clauses of the Constitution and its amendments dealing with “privacy.” It also severely limited a state’s ability to regulate, or even prohibit, abortion prior to viability, which in 1973, the year Roe was decided, was considered by the medical profession to be around 28 weeks gestation. By the time Casey, which reaffirmed Roe’s holding, was decided in 1992, viability was around 23 to 24 weeks.
Mississippi’s 15-week ban was seen, at the time of passage, as a direct challenge to Roe and Casey. The Mississippi AG has not only adopted that mantle but presses the high court not to shy away from that ultimate issue.
“And abortion is fundamentally different from any right this Court has ever endorsed,” Lynch argues. “No other right involves, as abortion does, ‘the purposeful termination of a potential life.’ [citations omitted]. So Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.”
As noted by The New York Times, however, the justices have three options they might choose to resolve this case: they could reaffirm the holdings of Roe and Casey; they could revise them; or they could overrule them.
So if the court overturns Roe and Casey, and the issue of abortion is no longer a “constitutional right,” what happens?
The simple answer is that abortion regulation returns to the legislative sphere, where states and even Congress could come up with various regulatory schemes ranging from outright prohibition to no restrictions at all.
What are the chances the high court will overturn Roe and Casey? Only Justice Clarence Thomas is on record as stating that the Constitution does not provide a “right” to abortion. The three remaining liberal justices – Stephen Breyer, Elena Kagan and Sonia Sotomayor – have always been on record as supporting abortion as a constitutional right. The remaining conservative justices, which include Chief Justice John Roberts, and justices Samuel Alito, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett, have not offered their opinions yet on this important issue.
Hopefully, the Dobbs case will provide the vehicle for correcting the horrible mistake of constitutional law that is Roe v. Wade. Please pray for the justices who will be deciding one of the country’s most important cases it will ever hear. When we hear what date has been set for oral argument before the justices, we’ll update you.
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