By Dave Andrusko
A week from today the Supreme Court will hear oral arguments in Mississippi’s Gestational Age Act. Julie Rikelman, from the Center for Reproductive Rights, will represent the state’s lone abortion clinic. “Mississippi Solicitor General Scott Stewart will make his U.S. Supreme Court debut Dec. 1 to defend that state’s 15-week abortion ban, the latest in a string of attorneys for state Solicitor General offices to take the lectern this term,” according to Kimberly Strawbridge Robinson, a reporter for Bloomberg Law.
In a story written by David Yaffe-Bellany, also for Bloomberg News, he explained that
“Rikelman’s strategy centers on stare decisis, the legal principle that courts should give deference to precedents, especially ones that have been repeatedly affirmed. “Precedent will absolutely be critical to this case,” she says. “This is a right we’ve had for 50 years.”
With medical technology, ultrasound, the advancement of women in the professions, and Roe v. Wade’s and Planned Parenthood v. Casey’s own increasingly rickety legal framework, reliance on stare decisis (to stand by things decided is practically all defenders have to justify maintaining abortion.
The question in Dobbs v. Jackson Women’s Health Organization is, are all prohibitions on abortions performed pre-viability unconstitutional? In other words, at issue is the viability of the viability standard.
Back in 1973, when Roe was decided, 24-26 weeks gestation was considered “viability.” Today, with the steady advance of peri-natal care, 21-22 weeks gestation is now the new “viability.” Put another way, the same child who is not “viable” today could well be a medical breakthrough away from viability tomorrow. This says nothing about the child and everything about the tools available,
Justice O’Connor famously said in her dissent in Akron
“The Roe framework is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the state may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.”
There have been dozens and dozens of brilliant critiques of stare decisis. For example, “Settling the law is the primary justification for this doctrine’s application, but precedent is entitled to stare decisis respect only if it actually is settled.”
But what about stare decisis, ask my friends in both punditry and the legal academy. What about precedent, indeed? I’d no more be locked into bad constitutional law on Roe or Casey than I would be on Dred Scott v. Sandford, Plessy v. Ferguson or Korematsu v. United States — the notorious trio of worst Supreme Court decisions. I put Roe and Casey in that awful pantheon of terrible scars on the court’s history.
And there is Mississippi Attorney General Lynn Fitch, who explained that viability is inherently a function of improving medical technology which is constantly ever 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 her brief. Such “line-drawing” is by nature a legislative task.
She summarized the weaknesses of the High Court 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 this 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.
There are those who would like to believe that Roe v. Wade settled the issue of abortion once and for all. But all it did was establish a special-rules regime for abortion jurisprudence that has left these cases out of step with other Court decisions and neutral principles of law applied by the Court. As a result, state legislatures, and the people they represent, have lacked clarity in passing laws to protect legitimate public interests, and artificial guideposts have stunted important public debate on how we, as a society, care for the dignity of women and their children.
I’ll be taking Thursday and Friday off for the Thanksgiving Day holiday. After that, we’ll pick up with the fourth part of this five-part series on Monday.
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