A supreme chance at an abortion fix
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May 18, 2021 (Family Research Council) – Americans could use some good news right about now – and yesterday morning, the Supreme Court gave it to them. After 29 long years, the justices just took a case that every pro-lifer has been waiting for: a direct challenge to Roe v. Wade. For the first time since 1992, the highest court in the land has a chance to deal a death blow to the precedent that's tied this country in judicial knots – and robbed us of 62 million unique, irreplaceable lives. That could all change by this time next year when the Supreme Court has what some legal scholars are calling "the best opportunity they'll ever have to overturn Roe."
For years, cases have been bubbling to the surface from the states – all of them designed to do what Mississippi's law just did: force the Supreme Court to reconsider the country's abortion standards. A lot of people – FRC experts included – think the mere fact that the justices took the case is a victory. It means, most likely, that the court's newest members are ready to make a major change in the law. "This is groundbreaking," FRC's Katherine Beck Johnson agreed. The fact that the Supreme Court has agreed to hear "the first gestational limit on abortion since Roe" is a significant shift. "With Justice Amy Coney Barrett now on the Court, we look forward to the unborn being protected," she said.
And that's exactly what groups like Planned Parenthood are afraid of. The organization's action arm, led by Alexis McGill, was disgusted by the announcement, warning that almost 50 years of radical precedent is on the line. Pro-lifers, she said sullenly, have obviously been waiting for this day, since it's "the opportunity for the newly compromised Supreme Court to take away our right to abortion."
Mississippi's law, which went through the wringer on appeal, would limit abortion to the first 15 weeks of pregnancy unless there's a serious abnormality with the baby. That's two months earlier than the 24-week limit, set by Planned Parenthood v. Casey in the early 90s. But times and technology, Mississippi argues, have changed. In her brief to the high court, state attorney general Lynn Fitch (R) calls it an "inflexib[le] viability standard [that] eviscerates 'the states' ability to account for 'advances in medical and scientific technology that have greatly expanded our knowledge of prenatal life...'" She pointed to the new science on fetal pain and stimuli – explaining that babies can now feel pain much earlier than researchers thought. "Mississippi attempted to introduce these advances below. But the district court disregarded them," she argued.
In fact, Judge Carlton Reeves didn't just disregard them, he chastised Mississippi for trying to bait the new justices into taking their case. "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," he wrote. "This court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature."
Fifth Circuit Court of Appeals Judge James Ho was much more sympathetic but agreed that he was bound by what the Supreme Court had decided all of those years ago. Still, he didn't mind reminding the justices in his reluctant (but separate) concurrence that "Nothing in the text or original understanding of the Constitution establishes a right to an abortion. 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."
Now is the time to change that, NRO's Ed Whelan says. "Laws like Mississippi's have broad public support. According to an NPR/PBS NewsHour/Marist poll from last year, only 29 percent of Americans think that abortion should generally be allowed after the first three months of pregnancy (13 or so weeks). That broad public support is likely to grow when Americans learn that – according to this Center for Reproductive Rights database – France, Italy, Germany, Spain, Norway, Switzerland, and lots of other European countries have a gestational limit of 14 weeks or earlier." This case he points out will finally give President Trump's three justices a chance to send the issue back where it belongs – to state legislatures. "Indeed," he wrote in November, "it is unlikely that there will ever be a more opportune moment."
For some justices, like Thomas and Samuel Alito, this day has been a long time coming. "Our abortion precedents are grievously wrong and should be overruled," Thomas insisted as recently as last year. FRC's Mary Szoch agrees. "Roe and Casey were obviously wrongly and arbitrarily decided... Now, with this direct challenge to Roe and Casey, the Court has a chance to correct their errors and send the 'right' to abortion back to the states. We must pray ardently that the justices have the courage to stand against the pressure from the left and uphold the Constitution. Ultimately, we must pray that hearts and minds everywhere change and that the review of Mississippi's abortion ban is the beginning of total protection of the unborn child in the womb."
Published with permission from the Family Research Council.