On Monday, the Supreme Court agreed to hear a case that challenges Mississippi’s law that enforced restrictions on abortions beginning at 15 weeks’ gestation except in cases of medical emergencies or severe fetal abnormalities. In 2018, Mississippi lawmakers passed the Gestational Age Act, which was later struck down by a lower court. Dobbs v. Jackson Women’s Health Organization directly challenges two landmark abortion cases: Roe v. Wade and Planned Parenthood v. Casey.
In previous abortion cases before the Supreme Court, the justices have been able to avoid dealing with the real issues at the heart of Roe and Casey, among which are undue burden and viability — and both of which are issues in the Mississippi law. SCOTUSblog reports the justices “considered the petition 12 more times before announcing on Monday that they would take up the first question presented in the state’s petition: whether all pre-viability bans on elective abortions violate the Constitution.” The time for punting the hard stuff has passed.
This case provides an opportunity to showcase what pro-life advocates have seen via scientific advancements for years. In the past, the Supreme Court has ruled that states can’t restrict abortion before the age of viability, per Roe’s 1973 reasoning, but when Mississippi lawmakers passed the law, they did so with the advantage of medical knowledge that shifts viability closer to 15 weeks.
We know more about how babies live and thrive in their mother’s wombs and outside of them than we did in 1973. While some medical experts say viability begins at 24 weeks, sometimes, babies can be born earlier and survive. Others argue viability is an unethical standard for abortion; many grown adults need medical aid to survive. At eight weeks, babies’ organs are entirely present, they have their own unique set of DNA, and they can feel pain — or at least, they try to avoid it.
Medical advancement has not only saved the lives of countless unborn babies, but it could also provide a window into the museum of archaic thinking that Roe has trapped liberals inside. Science is on the side of life: “Embryos” are babies from conception, and now, the justices might finally get to hear Roe from that perspective.
This case also provides an opportunity for the justices simply to toss out a bad law, one that should always have been up to lawmakers in the first place. Abortion advocates may rest in the knowledge that Roe is an established precedent, but that logic isn’t anywhere as safe now: Sure, Roe is precedent, but it’s a garbage one.
Recall Justice Brett Kavanaugh’s epic 10-page rant within his concurring opinion on Ramos v. Louisiana wherein he destroyed the concept of making rulings based on precedent alone: “The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents. All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions.” National Review’s Kevin D. Williamson says Roe should just be overturned for that reason alone.
Because the Constitution is silent on abortion, a post-Roe order would be established legislatively. Put another way: Post Roe, the law would be made by the lawmakers. That would probably mean that Oklahoma and Utah would end up with abortion laws very different from those of California and New Jersey. As a constitutional matter, that is appropriate. It is, in fact, how things are supposed to be: We have 50 different states for a reason.
Finally, this case showcases the importance of state laws restricting abortion. They have done several things: They have tested the Supreme Court as they were designed to do. They have encouraged people to continue rallying for life on both ends of the fight, culturally and politically. Most importantly, they have bolstered the weakest part of the conservative movement from the 1970s and 1980s, which seemed to care more about the unborn than the woman carrying the child. These laws have spurred many of us to be more aware and supportive of women facing the choice of abortion. Hundreds of organizations now exist to support a woman through an unwanted pregnancy and to support her should she place the baby up for adoption.
All the pro-life movement’s efforts, protests, supplies, lobbying, adoption papers, and changed diapers are not for nothing. This could be the turning point in America’s culture war on life — when women will finally see the choice of life as essential.
Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.
