What you need to Know...
This Wedneday, December 1, 2021, the biggest abortion case since Roe v. Wade will arrive at the Supreme Court of the United States for oral arguments. That means each side — Dobbs and Jackson— will make their case for the issue at hand. Abortion law hangs in the balance.
What’s the issue?
In 2018, the State of Mississippi passed a law “that bans almost all abortions after the 15th week of pregnancy.” With the Court’s recent decision not to block the Texas abortion law, the stakes are high. This case could lead to the overturning or to severely limiting the decision of Roe and Casey.
How did it Get Here?
The Supreme Court Blog reports...
“The Mississippi law at the heart of the case is known as H.B. 1510 or the Gestational Age Act. Passed in 2018, it bans almost all abortions after 15 weeks: It carves out exceptions for medical emergencies and cases involving a “severe fetal abnormality,” but it does not make exceptions for rape or incest. Jackson Women’s Health Organization, the only licensed abortion provider in the state, went immediately to federal court to challenge the law, arguing that it is unconstitutional under the Supreme Court’s cases. In Roe, which was decided in 1973, the court held that the 14th Amendment’s due process clause includes a right to privacy that protects the decision to have an abortion. The court also adopted a trimester framework: During the first trimester, states cannot interfere with the decision to have an abortion; during the second trimester, states may adopt reasonable health regulations but cannot ban abortion; and during the third trimester, states may ban abortion except when the procedure is necessary to protect the life or health of the patient.”
What’s being Argued?
Mississippi is arguing for overturning the previous cases of Roe and Casey. Here are the main points of MS arguments…
The State is arguing that both the Roe and Casey decisions are “egregiously wrong,” stating, “There is no right to an abortion in the text of the Constitution, nor is there any general “right to privacy.”
Abortion law belongs to each state, not a decision for the Supreme Court to make.
The cases are “hopelessly unworkable.” (See Casey decision for further insight).
Roe should be overturned because its factual basis is “out of date.” The state is arguing that many of the factors that influenced Roe (undue burden on the mother) can now be dealt with through means other than abortion.
Roe has given the issue of abortion undue place and prominence in the United States legal system.
MS is also presenting an alternative where Roe is not overturned, but their law remains enacted.
The Jackson Women’s Health Organization is arguing…
The Court has its reputation to consider and uphold. If the court changes course now, and reverses Roe and Casey, it will only come as a result of the current conservative majority. Essentially, Jackson is arguing identity politics.
That the legalities around the issue are just too deep and entrenched at this point. “...two generations – spanning almost five decades – have come to depend on the availability of legal abortion, and the right to make this decision has been further cemented as critical to gender equality.”
The State is simply wrong in arguing that a right to boirtion is not in the Constitution.
The Clinic rejects the State's argument that medical advancements have changed the factual basis for Roe.
The Clinic rejects the State’s alternative.
The Challenge of Stare Decisis
Stare decisis is the idea that the Court should normally follow the ruling and precedents of previous decisions. This is why legal scholars and judges study historical case law. “How was this handled in the past?”
For the Court to decide in favor of Mississippi, and overturn both Roe and Casey, would be a major development in the history of the Court. It doesn’t happen often. The reason for the principle of Stare Decisis is the belief that the Court is meant to rule based on fact and reason. It should, therefore, be uncommon and difficult for the Court to overturn a past ruling.
Roe was and is Judicial Overreach
The Roe decision was made in the Supreme Court in 1973 when a “right to abortion” was “found” in the Constitution’s 14th Amendment (The Due Process Clause). This “discovery” led to abortion becoming the law of the land.
But the normal path of legislation flows through the United States Congress (House and Senate), and upon approval of both houses, it is then signed into law by the President or vetoed. The Supreme Court may only discern and determine whether laws passed by the congress are constitutional or not.
Roe DID NOT came from the Congress. In fact, the Congress has never really been able to get legislation regarding abortion law through both chambers.
So the Court’s Roe decision of 1973 not only originated in the Court itself (which is unconstitutional), it is not actually a law according to the United States Constitutional process.
The Burden Lies with Jackson
The burden of proof lies with Jackson. The clinic’s only argument is that Roe would be violated...and that is really no argument at all. The arguments from Jackson, as with any pro-abortion case, have to ignore the facts of abortion and focus on the politics.
As the SCOTUS blog reports, “If the court were to overturn Roe and Casey, access to abortion in America would shrink dramatically and immediately. Twenty-one states have laws in place that would ban all or nearly all abortions if Roe and Casey fell. And even if the court does not formally overturn Roe and Casey, a decision weakening those precedents would permit new abortion restrictions, perhaps including bans on some early-stage abortions.”
A Time to Pray.
Christians ought to be praying this week over this issue.
Pray that the Justices would hear the arguments and render a decision in line with the justice of God.
Pray for the legal teams involved.
Pray for those who will, no doubt, be protesting.
Pray for good soil for the gospel of hope.
Pray for mothers and families affected by this decision.
Above all, pray that justice would roll down like water and that no more babies would be murdered in the womb.
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