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Mississippi makes a powerful case against Roe v. Wade

By Kaylee McGhee White

Mississippi has filed a reply brief to the Supreme Court in the abortion case Dobbs v. Jackson Women’s Health Organization. It is an excellent argument in defense of abortion restrictions, but also against Roe v. Wade and Planned Parenthood v. Casey, the two cases Dobbs seeks to overturn.

First, some background. As I explained back in September:

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The statute at issue in Dobbs is a Mississippi pro-life law that prohibits nearly all abortions after 15 weeks, with exceptions for medical emergencies or severe fetal abnormalities. The Jackson Women’s Health Organization sued the state over the law, and a federal district court and then the Fifth Circuit Court of Appeals sided with the abortion provider. The abortionists argued that the state’s law is unconstitutional under the precedents of Roe and Casey because the Casey ruling prevents states from banning pre-viability abortions, which is what the 15-week gestation marker would do.

When the Supreme Court hears the case in December, it will deal specifically with one question raised by Mississippi: whether all restrictions on pre-viability abortions are unconstitutional. This will make it extremely difficult for the court to avoid revisiting its previous rulings in Roe and Casey, which provide the legal justification for pre-viability abortions.

In other words, the court will have to decide definitively: Can states restrict abortions, pre-viable or not, or should they be banned from restricting abortions altogether?

This is what Mississippi argues in its reply brief. “Return the matter to the people,” the state says. “That approach — with abortion restrictions assessed under rational-basis review — is used on almost every important issue this country faces.”

Roe and Casey are the only reason the states aren’t already able to weigh in on this issue, the state notes, adding that there is no constitutional, historical, or legal defense for either court case.

Here are a few notable sections from the state’s reply brief that highlight just how weak these cases are:

The weight of this Court’s substantive-due-process caselaw is thus solidly against Roe and Casey. And that point is fortified by another that shows how dramatically those cases departed from precedent: this Court has never endorsed another privacy or liberty interest that involves purposefully ending a human life. … If “personal autonomy” does not establish a fundamental right to purposefully end one’s own life, it does not establish a fundamental right to purposefully end another’s life.

And:

Beyond that, two cases that show so little regard for precedent warrant less — not more — precedential respect. Roe departed sharply from precedent to reach its holding. And far from respecting Roe, Casey discarded Roe’s trimester framework, replaced its legal standard, recast its reasoning, and overruled two of the Court’s major post-Roe abortion decisions — all in a fractured decision that saw most Members of this Court refuse to say that Roe was correctly decided. What Casey did hold onto was Roe’s most dramatic departure from precedent — its holding that the Constitution protects a right to abortion. Two egregiously wrong decisions that dispense with so much precedent do not have a stronger stare decisis claim: they have a singularly weak claim.

Mississippi has made an outstanding case that the court will not be able to ignore. Hopefully, the justices arrive at the correct decision: that Roe and Casey are legally flawed, unsound decisions that defy both common sense and a sound reading of the law.

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