By Dave Andrusko
The lone abortion clinic in Mississippi filed a brief with the Supreme Court Monday, telling the justices “Unless the court is to be perceived as representing nothing more than the preferences of its current membership, it is critical that judicial protection hold firm absent the most dramatic and unexpected changes in law or fact”.
Of course, the “current membership” of the High Court always evaluates the arguments made on both sides—in this case, “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” In her 49 page brief, Attorney General Fitch summarizes the weaknesses in the High Court’s abortion jurisprudence in two sentences:
Roe broke from prior [Supreme Court] cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.
Roe and Casey have proven hopelessly unworkable.
In calling for abortion policy to be returned to the states “where agreement is more common, compromise is more possible, and disagreement can be resolved at the ballot box,” Fitch maintains that “Abortion jurisprudence has placed this Court at the center of a controversy that it can never resolve.”
And Roe and Casey have produced a jurisprudence that is at war with the demand that his Court act based on neutral principles. Abortion case law is pervaded by special rules—the undue-burden standard, the large-fraction test, and more—that feed the perception that “when it comes to abortion” this Court does not “evenhandedly apply” the law.
Attorney General Fitch concludes:
By returning the matter of abortion policy to state legislatures, we allow a stunted debate on how we support women to flourish. It is time for the Court to let go of its hold on this important debate.
Not so, says attorneys for Jackson Women’s Health.
“While Texas is circumventing Roe and the Constitution, Mississippi is openly asking the court to overturn Roe,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which is representing Jackson Women’s Health. CRR is also leading the legal challenge against SB8—the Heartbeat Law– in Texas.
“If the court grants Mississippi’s request to overturn Roe, large swaths of the South and Midwest — where abortion is already hard to access — will eliminate abortion completely,” she said.
Northrup’s main argument is a tried and untrue assertion: “Two generations (of women) — 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.”
NRL News Today summarized a number of amicus briefs, several of which addressed that argument head on.
For example, in its amicus Heartbeat International wrote:
Heartbeat is well positioned to address the stare decisis [adherence to precedent] issues in this case because its work, and the work of the organizations it supports, refute the erroneous assumption underlying the plurality’s decision in Casey, namely, that when a woman finds herself unexpectedly pregnant, her only or best feasible option is abortion. In discussing whether “reliance” considerations warranted applying stare decisis, the Casey plurality went so far as to state: “[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
As shown below, however correct or incorrect that supposition may have been in 1992, it is demonstrably incorrect in 2021 given changes in society—including the growth and expansion of the pregnancy help network, advances in technology, and evolving social mores. Every day across the Nation, pregnancy help organizations serve women facing unintended pregnancies so that abortion is not their only option and giving birth does not mean sacrificing their educations, careers, or ability to “participate equally in the economic and social life of the Nation.” The proliferation and effectiveness of pregnancy help organizations, together with the societal changes of the last three decades, moot the reliance concerns postulated in Casey and demonstrate that the Court should not apply stare decisis in this case.