RICHMOND, Virginia (LifeSiteNews) — Virginia’s newly minted Republican leadership has lost no time delivering on its conservative campaign promises.
On his first day in office, Republican Gov. Glenn Youngkin signed a raft of executive orders banning critical race theory and striking down certain mask and COVID jab mandates.
Now, Virginia’s new solicitor general has withdrawn the state from a pro-abortion lawsuit filed along with 22 other states, Washington, D.C., and North Carolina’s Attorney General, which had contended that Mississippi’s 15-week abortion ban was unconstitutional.
The legitimacy of Mississippi’s law is now pending before the U.S. Supreme Court in the much-anticipated Dobbs v. Jackson Women’s Health Organization case, which could see the federal “right to abortion” overturned.
“Following the change in Administration on January 15, 2022, the Attorney General has reconsidered Virginia’s position in this case,” wrote Virginia’s new solicitor general Andrew N. Ferguson on Friday, adding that “Virginia no longer adheres to the arguments contained in its previously filed brief.”
You truly love to see it. pic.twitter.com/ih64CLQ4HL
— Joshua J. Prince (@JoshuaJPrince) January 21, 2022
Ferguson cited Justice Clarence Thomas in arguing that Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the previous Supreme Court rulings which found and affirmed a “constitutional right to abortion,” had been “wrongly decided,” noting in the words of Justice Thomas that “those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.”
“Nor does our constitutional history lend any support to the right,” Ferguson continued, pointing out that the justification for a nationwide “right to abortion” is murky at best, arising “from previous decisions elaborating other rights that ‘emanate’ from ‘penumbras’ of various constitutional provisions, rather than the text, structure, and history of the Constitution itself.”
Many legal scholars and pro-life advocates have long held that the rationale behind Roe v. Wade was grievously flimsy, and that the controversial decision damaged the integrity of the Court and American law more broadly by essentially creating and defending a right which does not exist within the text of the Constitution.
Ferguson affirmed those contentions by noting that “the rootlessness of the right to abortion has made this Court’s abortion jurisprudence unworkable.”
What are penumbras and emanations and why does it matter?
— Ted Cruz (@tedcruz) January 10, 2022
In his letter to the Supreme Court, Ferguson further argued that the “undue-burden” standard created by the Court “arises from neither the text of the Constitution nor our historical traditions,” making it “little more than a judicial Rorschach test under which the constitutionality of any particular regulation of abortion is in the eye of the beholder.”
The “undue burden” standard asserts that abortion restrictions violate the Constitution if they “unduly burden” women who seek to obtain abortions before their unborn children are considered viable, or able to survive outside of the womb. The standard was crafted by the Supreme Court in its 1992 ruling in Planned Parenthood v. Casey, which was intended to settle debate about abortion and has acted as a ballast for the otherwise unwieldy reasoning which undergirds Roe.
Nevertheless, debate about abortion has not let up since the Court’s rulings, a fact also noted by Ferguson.
“Abortion is one of the most hotly contested political questions of our day,” Virginia’s solicitor general said. “That debate has not been improved by the Court’s constitutionalization of the issue in Roe, nor by its jurisprudence since. Justice Scalia’s advice that the Court ‘should get out of this area, where [it] ha[s] no right to be, and where [it] do[es] neither [it]sel[f] nor the country any good by remaining,’ has only improved with age.”
In conclusion, Ferguson stated unequivocally that under its new Republican leadership, “It is Virginia’s position that the Court’s decisions in Roe and Casey were wrongly decided. Unmoored from the Constitution’s text, the Court’s abortion jurisprudence has proven unworkable, and the Court’s effort to save it has distorted other areas of the law.”
Given these arguments, Ferguson concluded, the Supreme Court ought to “restore judicial neutrality to the abortion debate by permitting the people of the several States to resolve these questions for themselves,” asking the judicial body’s clerk to “circulate this letter to the Members of the Court.”
Pro-life and pro-abortion advocates alike have recognized that Roe could be stricken down as early as this summer if the Court decides in favor of Mississippi in the crucial Dobbs v. Jackson Women’s Health Organization case currently on the docket.
According to NPR, as of December, 2021 at least 21 states are positioned to end or drastically limit abortion within their borders if Roe v. Wade is overturned.