Nine days and counting until Supreme Court hears Dobbs v. Jackson Women’s Health Organization

Mississippi law protects unborn babies after 15th week

By Dave Andrusko

Editor’s note. The Supreme Court this morning released its first list of formal opinions of its 2021-22 term (there was only one) and it did not include Texas’ Heartbeat Law. That means there will be no decision on S.B. 8. prior to December 1, when the justices will hear oral arguments on Mississippi’s Gestational Age Act which protects unborn babies after the 15th week.

It seems like forever since Mississippi enacted its law (it was actually 2018) and the Supreme Court granted review (that occurred on May 17, 2021). The question under review seemingly is narrow– whether a state has a compelling interest in protecting the right to life prior to viability—but should the Court agree with Mississippi, it would remove a linchpin of the 1992 Planned Parenthood v. Casey decision.

Over the next nine days, we’ll examine a number of components of Mississippi’s Gestational Age Act. Today we’ll offer an overview of how the case reached the High Court with a brief detour into a particularly brilliant opinion.

HB 1510 was introduced on January 15, 2018. The Mississippi legislature passed the measure by huge margins—the House on February 2, 2018, by a 79-31 vote, and the Senate on March 6, 2018, by a 35-14 vote. Thirteen days later, Gov. Phil Bryant signed the bill into law.

The Jackson Women’s Health Organization, Mississippi’s lone abortion clinic, sued on March 19 (the same day the law was signed) on the grounds that the law violates the viability standard established by Planned Parenthood v. Casey. On November 20, 2018, Judge Carlton W. Reeves of Federal District Court in Jackson, agreed in a blistering attack on lawmakers.

Although his decision was sustained by 5th Circuit Court of Appeals,  as we noted at the time, Judge James Ho did so with great reluctance: He felt constrained by abortion rulings handed down by the Supreme Court. We are sharing highlights of an extremely thoughtful concurring opinion because it outlines why Roe v. Wade is a judicial abomination and why Judge Reeves’ opinion was so disrespectful of the opinions held by millions of Americans:

Federal judges are not elected. Yet the Constitution grants us life tenure. That is not because we are supposed to decide cases based on personal policy preference. It is because we swear an oath to rule based on legal principle alone. I share in the concern, expressed by every state in this circuit, that the district court did not discharge that duty here, and that its opinion diminishes public confidence in the federal judiciary. 

It is troubling enough to many Americans of good faith that federal courts, without any basis in constitutional text or original meaning, restrict the ability of states to regulate in the area of abortion. But that is of course what decades of Supreme Court precedent mandates. Accordingly, I am required to affirm. 

It adds insult to injury, however, for a federal court to go further and to impugn the motives of those good faith Americans. When that occurs, citizens may rightfully wonder whether judges are deciding disputes based on the Rule of Law or on an altogether different principle. Replacing the Rule of Law with a regime of Judges Know Better is one that neither the Founders of our country nor the Framers of our Constitution would recognize.

In the months and years to come, the case slowly worked its way forward. On May 17, 2021, the Supreme Court agreed to hear oral arguments and on September 20 set December 1 as the date to hear the case.

Tomorrow, a look at the major arguments why the justices should uphold the Gestational Age Act and why, in so doing, they should overturn Roe or substantially modify it.