Should the Supreme Court or the legislatures of the 50 states determine the extent to which abortion is allowed … or restricted? A new Mississippi abortion law provides the Supreme Court an opportunity to reconsider Roe v Wade.
The Mississippi abortion law restricts abortions after 15 weeks of gestation, with exceptions for the mother’s health and in cases of severe fetal abnormalities that would prove fatal to the child.
A lower court struck down the law for violating Roe. In response, Mississippi turned to the Supreme Court to reconsider the case. In May, the Court said yes, they would reconsider whether pre-viability abortion laws are constitutional.
The case is reframed to question the underpinnings of Roe
However, Mississippi Attorney General, Lynn Fitch, reframed the case to focus on the viability of Roe as sound legal jurisprudence. Says Ms Fitch in her brief:
“On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight. Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational-basis review that applies to all laws.”
She lays out 4 reasons why Roe and Casey v Planned Parenthood are unsound:
1. A “right to privacy” does not protect a constitutional right to abortion.
2. Roe and Casey “do not provide persuasive support for a viability rule.”
3. Scientific advancements have occurred since Roe and Casey were handed down that have overtaken Roe factual assumptions.
4. The doctrine of stare decisis shouldn’t save Roe and Casey.
She even lays out an alternative path the Court could pursue if they’re willing to uphold the Mississippi law without completely overturning Roe.
Her brief is compelling. It provides hope for the pro-life community, although there’s no guarantee the court will be swayed.
The National Review provides a closer look at Lynn Fitch’s brief for those interested in more legal insights into this exciting case.
Let us hope a Mississippi abortion law is the catalyst to topple Roe.