The day before the United States Supreme Court hears Dobbs v. Women’s Health Organization

By Dave Andrusko

Mississippi Attorney General Lynn Fitch

We’ve been running a countdown for the last ten days explaining the many issues at issue in Dobbs v. Women’s Health Organization. Today is our last preview. Beginning tomorrow, we will fill our readers in on the questions asked by the justices about a 2018 law that protects unborn babies after the 15th week. The sole (but vitally important) question the Supreme Court will address is “whether all pre-viability prohibitions on elective abortions are unconstitutional.” 

I’m going to begin with an illustration that suggests what we are up against. ABC News Devin Dwyer ran a preview today which included this whooper: “Fetal viability outside the womb — around 24 to 26 weeks, according to medical experts…”

You would think, but you would be wrong, that Dwyer would be aware that the viability threshold is 21-22 weeks.

On the other hand, Dwyer acknowledged a fundamental truth about where the public stands:

While Americans are broadly supportive of abortion rights, they appear more sharply divided on the type of ban at issue in Mississippi. A Marquette University Law School poll this month found 37% favored upholding a 15-week ban, with 32% opposed.

Another law about which the Supreme Court just heard oral arguments–The Texas Heartbeat Law—also garnered strong support. Contrary to the flood of negative media attention, Texas’ Heartbeat Law—S.B.8—found not only major support among women and men, Latino and white respondents, it also gathered strong support among Independents and nearly 4 in ten Democrats!

According to Jasper Scherer

Among the state’s three largest racial and ethnic groups, Latino Texans expressed the strongest approval for the abortion law, with 58 percent supporting it, compared to 55 and 47 percent of white and Black residents, respectively.

Otherwise, the law was supported by 59 percent of men, 52 percent of women, 74 percent of Republicans and 38 percent of Democrats. Mirroring the statewide total, 55 percent of independents said they approve of the law.

Back to the Mississippi law….

How did Justice Blackmun frame the question of viability in Roe v. Wade?

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Critics, such as Mississippi Attorney General Lynn Fitch, ask, what does that even mean?

That the unborn child has now magically attained the capacity for a “meaningful life” at 28 weeks? Where do you find that in the Constitution?

“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 Fitch’s amicus brief. Such “line-drawing” is by nature a legislative task.

Even fervent pro-abortionists see the illogic of pegging the “right to abortion” to “viability.” 

In a story in yesterday’s New York Times, Adam Liptak pointed out that

Sherry F. Colb, a law professor at Cornell who was a law clerk to Justice Blackmun, recently wrote on a law blog that viability “would appear to have little to recommend it as a border between prohibiting and permitting abortion.” As a practical matter, she wrote, viability is a function of the ability to breathe outside the womb.

“The ability to breathe is essential for life,” she wrote, “but it is not the sort of thing to which we attach moral status, any more than the ability to see or to walk or to speak are such abilities.”

What about “stare decisis,” to stand by things decided? Writing in the Washington Post, Hugh Hewitt’s answer is perfect:

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.

What about Justice Blackmun’s error-strewn reading of history?

“Justice Harry Blackmun’s majority opinion repeatedly cited slipshod scholarship that was already in the process of being discredited in 1973 and has since been comprehensively debunked,” writes Ramesh Ponnuru. “The Supreme Court has, however, never revisited its mistaken historical claims, which have instead taken on a life of their own in academic work, popular journalism, and legal briefs.”

What about the powerful assertion that women’s future prosperity, their ability to advance in their professions, is dependent on the ability to abort an “untimely pregnancy?” Again, we cite AG Fitch who said this is “demeaning”:

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.

By the way, Lynn Fitch is Mississippi’s first female attorney general!

Tomorrow the Supreme Court will at last hear oral arguments regarding the Gestational Age Act. We will be here to fill you in what was said.