Last week the Supreme Court agreed to review Dobbs v. Jackson Women’s Health, a case asking whether Mississippi’s ban on abortion after 15 weeks is constitutional. This case, which is a direct challenge to the viability standard set forth in Planned Parenthood v. Casey, has the potential to overturn both Casey and the landmark Supreme Court case Roe v. Wade, thereby returning America’s abortion laws to the democratic process in each state — an outcome that even the late Justice Ruth Bader Ginsberg recognized would be “healthier” than the approach dictated in Roe.
In the early 1970s, when Roe was decided, only four states had legalized abortion before viability in all cases, while 14 states allowed abortion in some circumstances, and 33 states banned abortion in most cases.
Roe, a decision handed down by nine unelected jurists, effectively overturned all of those state laws by claiming that a fundamental right to abortion exists in the “penumbras” of the Constitution and mandating a one-size-fits-all answer to a question that divided the nation.
Contention has always surrounded Roe. Immediately following the decision, states passed 81 laws restricting abortion, and to this day, though unenforceable, nine states have kept their pre-Roe abortion bans. Conversely, since 1973, 13 states have enacted laws permitting abortion even if Roe is overturned, and the Democratic Party platform has morphed to exclude anyone not in favor of abortion.
As Justice Amy Coney Barrett noted, Roe certainly does not fall into the category of clearly settled case law. Laws on abortion are constantly in flux across the country. So far this year, over 500 pieces of pro-life legislation have been introduced, with 61 passing into law, and one reason so many laws are changing is that, since Roe, science has evolved.
When Roe was decided, viability was around 28 weeks. Today, the youngest baby to survive was born at just 21 weeks and four days gestation. When Roe was decided, the ultrasound image of an unborn child typically looked like a blob of tissue to the untrained eye. Today, ultrasound pictures can be clear enough to count fingers and toes. As late as 1987, doctors operated on newborn babies without anesthesia because the medical community did not recognize newborn babies as capable of feeling pain. Today, in recognition of babies’ ability to feel pain in the womb as early as 12 weeks, the anesthesiologist gives the unborn baby separate anesthesia from his mother.
In some states, these post-Roe scientific developments have changed people’s hearts and minds and have motivated them to demand legislation reflecting their views on abortion. In other states, abortion businesses have expanded as pro-abortion advocates have made progress in advancing their cause.
This is how democracy, “government of the people, by the people, and for the people,” is meant to work. Laws are meant to reflect the will of the people, with states operating as laboratories of democracy on issues not specified in the Constitution. Our Founding Fathers knew this, which is why they crafted the 10th Amendment.
Ginsburg also knew this, which is why she said, “At the time of Roe v. Wade, this issue was all over the state legislatures. Sometimes, the choice people won, sometimes they lost. … So, the law was in a state of change. I think it would have been healthier for that change to have gone on.”
Through its review of Dobbs, the Supreme Court has the opportunity to right one of the greatest wrongs in its history — to change a decision that even Ginsburg said “ventured too far in the change it ordered and presented an incomplete justification for its action.”
Without a doubt, the passage of prenatal nondiscrimination acts, dismemberment abortion bans, heartbeat bans, and, of course, all-out abortion bans have signaled to the Supreme Court that the states want to make their own laws on abortion. For almost 50 years, people have elected legislators in line with their views on abortion in hopes that those legislators would enact laws reflecting those views. Unfortunately, as Ginsburg said, Roe v. Wade “seemed entirely to remove the ball from the legislators’ court.”
It is time for the Supreme Court to do what pro-abortion advocate Ginsburg always thought the court should have done and pass the ball back.
Mary Szoch is director of the Center for Human Dignity at Family Research Council.
