July 22, 2021 (LifeSiteNews) – Mississippi officially submitted its brief to the United States Supreme Court Thursday in defense of its law banning abortion at 15 weeks of pregnancy, in which it makes the case that the nation’s highest court should take the opportunity to finally overturn Roe v. Wade.
The Court announced in May that it would be hearing Dobbs v. Jackson Women’s Health Organization, which concerns Mississippi’s HB 1510 law banning abortions from being committed past 15 weeks for any reason other than physical medical emergencies or severe fetal abnormalities. After its enactment in 2019, the law was temporarily blocked, then declared unconstitutional by the Fifth Circuit Court of Appeals.
The federal appellate court claimed that an “unbroken line dating to Roe v. Wade,” the 1973 ruling which imposed on all 50 states a “right” to pre-viability abortion, but that “unbroken line” is precisely what pro-life activists have long hoped to challenge.
“[N]othing in constitutional text, structure, history, or tradition supports a right to abortion,” declares the brief from the Missisppi Attorney General’s Office, before making what it calls an “overwhelming” case for overruling the “egregiously wrong” Roe, along with 1992’s Planned Parenthood v. Casey (which opened the door to some abortion regulations while reaffirming the “right” to abort itself).
“Roe based a right to abortion on decisions protecting aspects of privacy under the Due Process Clause,” but “broke from prior cases by invoking a general ‘right of privacy’ unmoored from the Constitution,” the brief notes. “Notably, Casey did not embrace Roe’s reasoning,” but instead defended “Roe’s result—based on the liberty this Court has afforded to certain “personal decisions,’” while similarly “failing to tie a right to abortion to anything in the Constitution.”
In addition to Roe’s constitutional bankruptcy (an assessment conceded by numerous legal scholars who favor legal abortion), the brief says this status quo has “proven hoplessly unworkable,” because without a sound grounding in the Constition, the “heightened scrutiny of abortion restrictions…provides no guidance to courts on how to account for the interests in this context.”
“While crediting States with important interests, Roe and Casey impede States from advancing them,” the brief notes. “Before viability the undue-burden standard has been understood to block a State from prohibiting abortion to assert those interests. And that standard forces a State to make an uphill climb even to adopt regulations advancing its interests. That is flawed. If a State’s interests are ‘compelling’ enough after viability to support a prohibition, they are ‘equally compelling before’ then.”
The brief goes on to cite the late pro-abortion Justice Ruth Bader Ginsburg’s 1985 acknowledgment that “Heavy-handed judicial intervention [in Roe] was difficult to justify and appears to have provoked, not resolved, conflict,” by insulating one of the nation’s most passionately-disputed issues from the public’s ability to vote on.
“Abortion jurisprudence has placed this Court at the center of a controversy that it can never resolve,” Mississippi argues. “And Roe and Casey have produced a jurisprudence that is at war with the demand that this Court act based on neutral principles.”
The brief then tackles the view of some justices that Roe should be upheld because reversal “would hurt this Court’s legitimacy,” when in fact “Roe and Casey are unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law—and, in doing so, harmed this Court.”
“Overruling Roe and Casey makes resolution of this case straightforward,” the argument concludes. “The Mississippi law here prohibits abortions after 15 weeks’ gestation, with exceptions for medical emergency or severe fetal abnormality. That law rationally furthers valid interests in protecting unborn life, women’s health, and the medical profession’s integrity. It is therefore constitutional. If this Court does not overrule Roe and Casey’s heightened-scrutiny regime outright, it should at minimum hold that there is no pre-viability barrier to state pro- hibitions on abortion and uphold Mississippi’s law.”
“A lot has changed in five decades,” Mississippi Attorney Lynn Fitch said in a press statement. “In 1973, there was little support for women who wanted a full family life and a successful career. Maternity leave was rare. Paternity leave was unheard of. The gold standard for professional success was a 9-to-5 with a corner office. The flexibility of the gig economy was a fairy tale. In these last fifty years, women have carved their own way to achieving a better balance for success in their professional and personal lives. By returning the matter of abortion policy to state legislatures, we allow a stunted debate on how we support women to flourish. It is time for the Court to let go of its hold on this important debate.”
The forceful brief calling for Roe’s overturn allays speculation that Fitch was going to ask the Court for a more modest outcome, based on a Wall Street Journal op-ed in which she wrote of asking the justices “simply to affirm the right of the people to protect their legitimate interests and to provide clarity on how they may do so.”
Now the only remaining question is how the court’s Republican-appointed majority will vote. Only Justice Clarence Thomas is explicitly on the record as anti-Roe, and only he and Justice Samuel Alito have established consistently conservative records over a significant period of time. Many have placed a great deal of hope with former President Donald Trump’s most recent appointees, though conservatives have also been alarmed by Justice Neil Gorsuch voting to redefine “sex” in federal civil rights law last year, and Justices Brett Kavanaugh and Amy Coney Barrett voting not to take up several cases of concern to religious, conservative, and/or pro-life Americans.