On December 1st, the Supreme Court is set to hear arguments regarding the challenge to Mississippi’s new abortion restriction, which outlaws most abortions after 15 weeks. The case, Dobbs v. Jackson Women’s Health Organization, is the most significant abortion case to be decided by the Supreme Court in years and will likely change abortion judicial precedent for decades to come.
In its brief, Mississippi threw down the gauntlet by directly asking the Supreme Court to overturn Roe v. Wade and Planned Parenthood v. Casey. In 1973, Roe created a “constitutional” right to an abortion prior to the viability of the fetus and that governments could only ban abortion in the third trimester as long as the women’s life wasn’t in danger. In Casey, the Supreme Court reaffirmed Roe’s “essential holding” but replaced the trimester system with what is called “undue burden.” This new standard mandated that if a law created an undue burden upon a woman seeking an abortion for a non-viable fetus, the law must be struck down as being unconstitutional.
By virtue of these two court cases and a selection of smaller complimentary cases, abortion in the United States is all too common and even more liberal than most European countries. For example, countries like France, Norway, and Denmark prohibit abortion after about 12 weeks. With Germany and Belgium banning it after 14 weeks. The fact is, Mississippi’s ban at 15 weeks would be relatively mainstream to our European allies, who have already settled the abortion question using normal democratic means.
Unfortunately, America has been unable to make any substantial progress limiting abortions even when the majority of citizens would approve of such measures. For example, a poll from the Associated Press shows that most Americans believe that abortion should be restricted in most cases after the first trimester. Because of the courts, pro-life states, such as Mississippi, have had their hands tied on the abortion question, unable to sort it out at the ballot box.
When Roe was decided, it was supposed to end the abortion debate for good. However, it has only perverted our legal system, weakened federalism, and exacerbated political polarization. Roe is a legal monstrosity, and it’s time for it to go.
Lack of Constitutional Grounding
The Constitution is entirely and undeniably silent on the question of abortion. Nowhere in the text does it mention abortion, trimesters, “undue burdens,” or anything else related to the concept. In a grand act of judicial activism, the Court manufactured a “right” out of thin air with zero consideration for the judiciary’s role, which is to interpret laws and verify that they don’t conflict with the Constitution. The ruling even prompted pro-choice legal scholar, John Hart Ely, to write in the Yale law journal, “It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Not even the Court’s argument that banning abortion amounted to taking away liberty without due process, which was outlawed under the 14th amendment, stands up to any sort of historical scrutiny. When the amendment was ratified in 1868, not a single person would have assumed that it, in any way, applied to abortion. At that time, states were passing their own laws restricting abortion. Precisely 28 states out of the 37 prohibited abortion at conception.
Tossing Roe would not even mean banning abortion across the United States. It wouldn’t even mean restricting abortion. It would return the matter to state legislatures and ultimately to the people, where the issue rightfully belongs. The central reason abortion is such a hot-button topic is that the Court, as Antonin Scalia observed, “fanned into life an issue that has inflamed our national politics.” By perverting the meaning of the Constitution and artificially creating a right to abortion, the Supreme Court forced abortion into becoming an issue of national importance instead of being resolved as each state sees fit.
The whole point of American federalism is to prevent every single issue from being subject to national dictates. By allowing people to exercise their civic duty, each state can craft legislation best suited to the needs and desires of their people. For instance, states like Texas and Alabama will have very different abortion restrictions than California and New York. And that’s ok. The Constitution is entirely agnostic toward abortion, meaning that either the pro-choice or pro-life route would be 100% consistent with the Constitution.
The role of the Supreme Court is simple. To interpret the law. Not to play activist. Not to conjure rights from nowhere. Not to be a de-facto legislature. And certainly not to play as philosopher-kings. Because of the profound irresponsibility of the Court’s decision on Roe v. Wade, abortion precedent can only be described as what Charles Cooke deemed “one of the world’s most preposterous Rube Goldberg machines.”
Just as Brown v. Board of Education overturned Plessy v. Ferguson and the doctrine of “separate but equal.” Today’s Supreme Court must act to right the sins of the past once more. Roe v. Wade can not be allowed to stand given that it has no feasible Constitutional defense and has warped the basic functions of federalism. With Dobbs v. Jackson Women’s Health Organization coming up soon, the Supreme Court has the best opportunity it’s had in decades.