By Dave Andrusko
With the date of December 1 set for oral arguments before the Supreme Court in Dobbs v. Jackson Women’s Health Organization, Mississippi Attorney General Lynn Fitch has filed a reply brief rebutting criticism of the law by the pro-abortion Center for Reproductive Rights. Mississippi’s “Gestational Age Act” prohibits abortion after the 15th week with narrow exceptions. The question before the court is whether all probation on abortions preformed previability are unconstitutional.
The Biden-Harris administration made its opposition official September 21. In a 39 page amicus the justice department rejected the position of the state of Mississippi that the Supreme Court uphold the state’s 2018 law.
Under principle of stare decisis–and because Roe and Casey were and remain correct–the court should again “reaffirm the right of a woman to chose abortion before viability.” And because the Act is flatly inconsistent with that right, the Court should affirm the decision below.
Building on its earlier brief, Attorney General Lynn Fitch’s office begins their amicus by noting
For 30 years, no party has had to defend Roe v. Wade. No party has ever had to defend Planned Parenthood of Southeastern Pennsylvania v. Casey. Finally forced to defend those cases, respondents drive home the stark reality: Roe and Casey are indefensible. At each turn, respondents’ “effort to defend” Roe and Casey “underscores” the overwhelming case for rejecting those decisions.
The CRR counters by asserting that the viability standard has served the nation well. Not so, says the Mississippi Attorney General’s office; it was and is inherently a function of improving medical technology which is constantly improving.
“Saying that a state’s interest becomes compelling at 15 weeks’ gestation is just as plausible as saying that it becomes compelling at viability,” said the brief. Such “line-drawing” is by nature a legislative task.
In a key section, the brief notes that an asserted fundamental right must be “deeply rooted in this Nation’s history and tradition,“ rather than in “the policy preferences” of judges. “A right to abortion has no such roots. Like Roe, Casey cast the Constitution and precedent aside to recognize a unique due-process right that ends a human life.”
Fitch rebuts many standard pro-abortion talking points such as the “need” for abortion in order for women to advance in the professions. This is “demeaning” and
It is false, but not new. Roe’s author claimed that overruling Roe would “cast[ ] into darkness the hopes and visions” of “millions of women.” That claim, picked up by respondents, boils down to the view that millions of women have a meaningful life only because 50 years ago seven men in Roe saved them from despair—and that women’s success comes at the cost of ending innumerable human lives. That is the debased view that Roe and Casey have produced. It is time to get rid of them. …
Women’s extensive political participation and share of the population ensure that they strongly influence public policy — and would do so without a judicially managed right to abortion.
What about fetal pain? “As respondents do with women’s health, so too with fetal development: they urge this Court to keep the people on the sidelines as knowledge of unborn life marches forward.” It is noteworthy that the studies on fetal pain cited by the Center for Reproductive Rights are old and outdated:
Respondents invoke abortion advocates to claim a “medical consensus” against the view that the unborn can experience pain before viability. The unborn develop “neural circuitry capable of detecting and responding to pain” by 10-12 weeks’ gestation. And recent research has found that “the cortex is not required for either consciousness or suffering.”
This Court need not resolve who is right on fetal pain. It need only recognize that knowledge changes and that the Constitution does not bind States to a long-outdated view of the facts.
Finally, the brief makes the powerful case that the abortion issue is best left to the states.
“Not treating abortion as a fundamental right treats it as the Constitution does most important issues: for the people to decide. …When this Court returns this issue to the people, the people can debate, adapt, and find workable solutions. It will be hard for the people too, but under the Constitution the task is theirs—and the Court should return it to them now.”