Can a state constitutionally ban abortion when the fetus is too young to survive outside the womb?
That is the question the Supreme Court of the United States will consider when hearing a case challenging its 1973 ruling Roe v. Wade.
The high court agreed Monday to hear the case Dobbs v. Jackson Women’s Health Organization in its October 2021 term. It involves a Mississippi law that was passed in 2018 but blocked by lower courts.
The Gestational Age Act bans abortions past 15 weeks gestation except for “a medical emergency” or in the case of a severe fetal abnormality. There are no exceptions for rape or incest.
Roe v. Wade allows states to ban abortion after “viability,” the point — at approximately 24 weeks gestation — at which an unborn baby can survive outside the womb.
“Ever since 1973 there’s been significant disagreement and conflict in our society about the moral righteousness of abortion,” said Thomas Olp, Vice President and Senior Counsel of the Chicago-based Thomas More Society, in an interview. “That dispute, that controversy, that moral disagreement is not going away. The court has finally realized it needs to deal with this issue, because there is no settled position that the country has gravitated towards. In fact it’s become ever more divisive. With more pro-life justices on the Supreme Court, it was understood that this issue would probably be looked at again. It seems like that’s what’s happened here.”
Bill history
After Mississippi Gov. Phil Bryant signed the 2018 law, the state’s only abortion clinic sued, and Judge Carlton W. Reeves of Federal District Court in Jackson blocked the law’s implementation.
“The state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Judge Reeves wrote.
A three-judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, affirmed that ruling, though one of the three judges, James C. Ho, expressed misgivings about the Supreme Court’s abortion jurisprudence.
“Nothing in the text or original understanding of the Constitution establishes a right to an abortion,” Judge Ho wrote. “Rather, what distinguishes abortion from other matters of health care policy in America — and uniquely removes abortion policy from the democratic process established by our Founders — is Supreme Court precedent.”
Lynn Fitch, Mississippi’s attorney general, urged the justices to hear the state’s appeal in order to reconsider their abortion jurisprudence. “‘Viability’ is not an appropriate standard for assessing the constitutionality of a law regulating abortion,” she wrote.
The court agreed to consider only one question presented in Fitch’s petition: “Whether all pre-viability prohibitions on elective abortions are unconstitutional?”
Updated science
In a friend of the court brief, the Thomas More Society pointed out that in Roe v. Wade, a pregnant woman’s constitutional right to choose to have an abortion is “subordinate to state laws that further a compelling government interest. Thus, the operative question is whether Mississippi’s interest in protecting 15-week fetuses is compelling.” The brief argued:
Roe was decided at a time when the Court could find no consensus on when life begins and at a time when states were reluctant to recognize fetuses as persons. Under Roe’s central holding, a state’s interest in protecting a previable fetus is not compelling. However, the viability standard is not beyond judicial review.
The question of when a human’s life begins is now recognized to be biologically determinable, and an overwhelming scientific consensus confirms the view that a human’s life begins at fertilization. This growing scientific consensus has prompted 38 states to enact changes in fetal homicide laws that recognize the humanity of preborn humans in non-abortive contexts, and other laws are being passed to protect preborn humans even though abortion restrictions are a consequence.
Should the high court return a favorable ruling in Dobbs, it would “eliminate Roe as a constitutional barrier to protecting unborn human life,” Olp said. “And that’s what needs to happen. There needs to be a recognition that Roe is no longer controlling law, and that states are able to make judgments about whether to protect fetal life, in view of scientific advances.”
Added the attorney: “We’re hoping there would be an overturning of Roe, basically saying it’s no longer based upon current scientific knowledge, therefore the viability standard, which was based upon a purported lack of scientific knowledge, is no longer the bright line between regulations that are accepted and those that are not.”
Notre Dame Law School Professor O. Carter Snead, who specializes in bioethics, said in a statement that the Supreme Court’s decision to take the case “signals the possibility that it may finally end its failed and constitutionally unjustified experiment as the nation’s ad hoc abortion regulatory body of last resort.”
“For nearly 50 years the Court has indulged the ironic fiction that the 14th Amendment — a provision of the Constitution ratified in 1868 (when abortion was illegal nearly everywhere) in order to provide fair and equal justice under law in the wake of America’s shameful failure to do so — forbids states today from extending the basic legal protections to all members of the human family,” said Snead, who is director of Notre Dame’s Center for Ethics and Culture and previously served as General Counsel to the President’s Council on Bioethics. “This tortured reading of the Constitution has undermined the rule of law, broken our electoral politics, and resulted in a staggering number of lives lost. It is time once and for all for the Supreme Court to return to its role as faithful interpreter of the Constitution and to repair the damage it caused years ago.”
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