Disclaimer: The opinions expressed in this guest post are solely those of the author and are not necessarily reflective of Live Action or Live Action News.
On September 13, Jackson Women’s Health Organization (JWHO) filed its brief with the Supreme Court in support of its challenge to Mississippi’s 15-week abortion ban in the case of Dobbs v. Jackson Women’s Health Organization. But the stakes are much higher than whether JWHO, Mississippi’s sole abortion provider, will be allowed to continue doing abortions up to 16 weeks, its current cut-off. Mississippi has argued that the Court should overrule Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the Supreme Court cases that discovered and perpetuated a constitutional right to abortion at any stage of pregnancy.
JWHO’s first argument was to suggest that the Court should not even hear the case, claiming that Mississippi had not included the question of overturning Roe and Casey in its petition to the Court. But whether Roe and Casey should be overturned was implicit in the first question presented by Mississippi: “Whether all pre-viability prohibitions on elective abortion are unconstitutional.” Mississippi’s petition to the Court contained other questions, including one more narrowly addressing whether its 15-week-ban could be upheld under Casey. The Supreme Court, in granting Mississippi’s petition, specifically limited its review to the first question, putting the validity of Roe and Casey squarely at issue.
JWHO claims abortion is part of “liberty” and “physical autonomy” — but abortion is different
JWHO then laid out its theory as to why Roe and Casey are “well-grounded in the Constitution and in the Court’s broader jurisprudence.” Quoting Casey, JWHO argues that the right to abortion is grounded in the Fourteenth Amendment’s protection of “liberty,” including “the right to make family decisions and the right to physical autonomy.” Broad, indeed. Such general concepts cover a wide swath of human conduct that is routinely regulated by the state.
In support of the “physical autonomy” interest, JWHO cites several cases dealing with state-mandated intrusions on the body, including medical procedures and forcible administration of drugs. But these cases involved, and upheld to one degree or another, a right to refuse such intrusions. JWHO could not find any case outside the abortion context where the Supreme Court found a constitutional right to obtain a medical treatment or procedure or to receive drugs as a matter of “physical autonomy.” Indeed, the Supreme Court specifically refused to create such an affirmative right in Washington v. Glucksberg (1997), where it declined to find that an individual had a constitutional right to assisted suicide.
JWHO also points to the Supreme Court’s ever-expanding list of activities to which it has extended constitutional protection, under the rubric of matters relating to “marriage, procreation, contraception, family relationships, child rearing, and education.” A tent that big can easily accommodate the right of a woman to “end her pregnancy.”
But, as even the Court in Roe and Casey recognized, abortion is different, because of the “potential life” that will be ended. Justice Blackmun, who authored the Roe decision, could not decide what to do with that difference, so he arbitrarily drew a line at viability and concocted vague rules for each side of the line. The remainder of JWHO’s brief is spent downplaying the difference and defending that line, which is the “central holding” of Roe and Casey.
JWHO claims nothing has changed with regard to our knowledge of a preborn child’s humanity since Roe
Addressing the fact that, unlike with other privacy rights recognized by the Court, a human life is ended in every abortion, JWHO’s brief dryly states that Roe “already took any such difference into account.” And so did Casey, by broadly declaring that the “State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims.” JWHO’s argument is that nothing has changed in our awareness of the humanity of the unborn child since Roe and Casey were decided, and therefore there is no justification for overruling those decisions.
Likewise, JWHO argues, nothing has changed in our understanding of viability that would undercut the Court’s decision to use it as the line of demarcation for when the state’s interest in “potential life” becomes weighty enough to justify restricting abortion. The Court anticipated that the “point” of viability would inch a bit earlier in pregnancy, and it has. But that’s no reason to overrule a half-a-century old precedent.
As further support for holding fast to Roe and Casey, JWHO argues that the viability line has proved “workable” over the decades, pointing to numerous cases which have applied the rules “with remarkable uniformity,” all resulting in abortion restrictions being struck down. “Viability” is working great for abortion providers.
What about dangers to mothers from later abortions? The Court has already heard it all, JWHO says, and besides, abortion has only become safer since Roe was decided – many times safer than childbirth, they falsely claim.
Fetal pain? Considered and rejected, and not true anyway according to all the major medical organizations, they again falsely claim,
More reliable contraceptive methods? “False and paternalistic.”
But hasn’t society become more accommodating of pregnant women and mothers with children to take care of? A “nonsensical” argument, they claim.
After dismissing the suggestion that anything has changed in the past 30 to 50 years, JWHO paints the frightening picture of what happens to women who are “denied” abortions. JWHO cross-references to dozens of coordinated friend-of-the-court briefs from hundreds of entities, all with the same message: Women. Need. Abortion. Anything other than affirmance of Roe and Casey “would shatter the understanding that women have held close for decades about their bodies, their futures, and their equal right to liberty.”
Despite what JWHO claims about fetal development and viability, and despite the fact that the social sciences do not present a compelling argument for overturning Roe, the best reason to reverse Roe is because Roe is just as wrong – egregiously wrong – as it was the day it was decided.
JWHO pronounces that, if Roe and Casey are overturned, “People would be harmed.” That statement illustrates the obliviousness of pro-abortion thinking — thinking which for almost 50 years has prevailed in Supreme Court decisions. The Court must confront and reject the fundamental error of excluding the unborn from the category of “people” whose lives and well-being are deserving of protection.
Bio: Catherine Short is Chief Legal Officer for the Life Legal Defense Foundation.
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