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SCOTUS and abortion: Bad precedents need replacing by good ones

If the court upholds the Mississippi law at issue in Dobbs v. Jackson Women’s Health Organization, it will merely be affirming the right of states to adopt moderate restrictions on the practice.

(Image: Bill Mason/Unsplash.com)

The Supreme Court’s announcement that it will consider an abortion case from Mississippi next fall touched off a predictable outpouring of frenzied criticism from pro-choice sources worried lest their cherished ‘right’ to abortion be in jeopardy. No small part of it was what might politely be called exaggeration or, not so politely, baloney.

As, for example, this nonsense from a May 17th Los Angeles Times editorial: “If the court lets states decide when a woman’s rights take a back seat to those of her fetus, that will all but obliterate Roe v. Wade.”

The obliteration of the Supreme Court’s decision legalizing abortion is unquestionably desirable, but Dobbs v. Jackson Women’s Health Organization isn’t going to do it. If the court upholds the Mississippi law at issue here, it will merely be affirming the right of states to adopt moderate restrictions on the practice. Some will (or already have), others won’t. The culture war will continue.

Even more fanciful was a claim by two law school professors to whom the Washington Post gave pride of place on its Op Ed page the day after the Supreme Court’s May 17 announcement. A ruling upholding the state law, they wrote, would mean the end of women’s “constitutional equality.”

That will indeed come as a surprise to the many highly intelligent, articulate women with leadership roles in the prolife movement.

To be taken more seriously (because of its source) was the reaction from the White House, where press secretary Jen Psaki said President Biden remains “committed to codifying Roe”—enacting that notorious ruling as federal law, something Biden said he’d do during the presidential campaign.

So what is the Mississippi law at the center of all this huffing and puffing really about?

Enacted by the state legislature in 2018, the Gestational Age Act bans all abortions after 15 weeks of pregnancy except in cases of medical emergency or severe fetal abnormality. A federal district court and the 5th U.S. Circuit Court of Appeals cited Roe and other abortion cases in overturning the statute.

The Supreme Court, agreeing last month to hear Dobbs, said it would consider this single question: “Whether all pre-viability prohibitions on elective abortion are unconstitutional.” Viability—the point at which an infant can live outside the womb—comes at about 24 weeks of pregnancy, although some children even younger than that have survived.

This truly is an important question, and a “no” answer by the Supreme Court—all pre-viability prohibitions are not necessarily unconstitutional—would save many lives. But that would not compel other states to adopt such laws, and the unhappy fact is that big, liberal states like California and New York would persist in their permissive policy regarding killing the unborn.

The Supreme Court will hear Dobbs argued next October or November, with a decision likely in the late spring or early summer of 2022.

Before then, we shall hear a great deal from the pro-abortion side about precedent. Where abortion is concerned, the crucial precedents are two Supreme Court decisions—Roe v. Wade (1973) and Planned Parenthood v. Casey (1972).

As to Roe, even supporters of abortion like late Supreme Court Justice Ruth Bader Ginsburg have acknowledged that it was an exceptionally poor specimen of judgecraft—as well as an egregious example of legislating from the bench. As to Casey, the result there rested on an opinion by three justices—Kennedy, O’Connor, Souter—grounded in their airy musings about the meaning of life.

Bad precedents need replacing by good ones. Here’s hoping Dobbs accomplishes that.


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About Russell Shaw 231 Articles
Russell Shaw was secretary for public affairs of the National Conference of Catholic Bishops/United States Catholic Conference from 1969 to 1987. He is the author of 20 books, including Nothing to Hide, American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America, and, most recently, Eight Popes and the Crisis of Modernity.

5 Comments

  1. In her dissent in the 1983 case, City of Akron v. Akron Center for Reproductive Health, Sandra Day O’Connor wrote that the “Roe framework is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the state may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science [embryology!] becomes better able to provide for [and recognize!] the separate existence of the fetus, the point of viability is moved further back toward conception.”

    And now in the White House, the self-acclaimed science guy, flat-earth Biden, says he wants to codify Roe v. Wade. What ever happened to “follow the science”?

  2. Strange how pregnancy is not treated as reproductive health care for the unborn child, and is treated more like a disease. It is also strange the way viability criteria are used. Usually the only threat to the viability of the unborn child is the abortion itself. We humans have long dependent childhoods, both in and out of the womb. In the vast majority of cases there is nothing that “ails” an unborn child that can’t be “cured” by a complete human gestation.
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    In the Preamble to the U.S. Constitution there is a part that says “secure the Blessings of Liberty to ourselves and our Posterity.” Posterity are future generations of Americans, Americans as of yet unborn. How do you abort and secure the Blessings of Liberty for Posterity at the same time? With the way abortion is being advocated it would appear that one generation owes the next generation nothing.

  3. Over 60 Million lives snuffed out. Over 60 Million Mothers and 60 Million Fathers for a grand total of over 180 million souls in sorrowful repose and lost wandering.Forever wondering the BIG Question “What if………………”

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