Supreme Court must return abortion debate to voters and legislatures, says Mississippi brief

Lynn Fitch, the Mississippi Attorney General. / LibandJustice via Wikimedia (CC BY-SA 3.0).

Denver Newsroom, Oct 13, 2021 / 18:00 pm (CNA).

The Supreme Court’s precedents on legal abortion are so tangled and misguided that abortion law should be returned to the people and their representatives in the legislatures, backers of a Mississippi ban on abortions after 15 weeks have said.

“Finally forced to defend those cases, respondents drive home the stark reality: Roe and Casey are indefensible,” said the Oct. 13 Supreme Court brief filed by Mississippi Attorney General Lynn Fitch and other state officials.

“It is true that the judiciary cannot provide a workable half measure—it cannot produce an enduring compromise. But the people can,” the brief continued. “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.”

The brief in the case of Dobbs v. Jackson Women’s Health Organization involves Mississippi’s ban on most elective abortions after 15 weeks. Oral arguments are scheduled for Dec. 1.

The challenge could mean the Supreme Court will re-examine its 1973 ruling in Roe v. Wade that legalized abortion nationwide, as well as its 1992 decision in Planned Parenthood v. Casey that reaffirmed legal abortion.

The respondents’ brief, led by attorneys from the pro-abortion rights group Center for Reproductive Rights, sought to defend the current viability standard, allowing abortion restrictions only after the unborn child may survive outside the womb. The brief said this is 23-24 weeks into pregnancy. The respondents argued that the viability standard serves the court well, has a grounding in the constitution, and has not been challenged by the facts. Defenders of the Mississippi law, they said, do not provide an alternative framework that could sustain a stable right to abortion.

“Each of the state’s purported alternatives would upend the balance struck in Casey and ultimately extinguish ‘the woman’s liberty to determine whether to carry her pregnancy to full term’,” said the pro-abortion rights brief. Upholding the Mississippi ban would lead to “attempts by half the states in the nation to forbid abortion entirely, and a judiciary left without tools to manage the resulting litigation.” The brief argued that the state should reaffirm precedent, which holds that a state’s interest in protecting fetal life falls short of overriding individual liberty claims.

Fitch and other Mississippi leaders faulted this response.

“Respondents’ effort to narrow this case—or avoid any decision—shows what they know: that Roe and Casey are deeply flawed and that those flaws have finally been presented to the one tribunal that can do something about them,” said their brief.

There is “no constitutional basis” for Roe, Casey, or the viability rule, the brief said. The logic for abortion rights decisions appear selective and unique, rather than part of American constitutional tradition.

 “(T)his Court has never endorsed another privacy or liberty interest that involves purposefully ending a human life,” the brief said.

Backers of the Mississippi law depicted Roe as a departure from precedent, and Casey as similarly “egregiously wrong” in a way that weakens claims they should serve as continued precedent.

The common law long condemned and restricted abortion and most states broadly restricted abortion at the time the Fourteenth Amendment was passed. Abortion is a matter that “unites state interests in protecting women’s health and unborn life” but current pro-abortion rights precedent “uniquely limit the states and cut off the democratic process,” said the brief.

The viability line has no constitutional or principled basis and could just as meaningfully be drawn at 14 weeks into pregnancy.  At minimum, the brief argued, the court should reject a rule based on viability.

“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, arguing that such “line-drawing” is legislative task and another sign that abortion decisions should not rely on the courts.

“Abortion—as both a jurisprudential and policy matter—is as divisive and unsettled as ever,” said the brief. “Protecting unborn life and women’s health are as compelling as ‘preserving public confidence in the integrity of the judiciary’— an interest this Court has found compelling,” it added.

States should be able to decide on disputed questions, such as to what extent either continued pregnancy or abortion may create health risks for the mother. Similarly, the states should be able to account for advances in knowledge of when the unborn child becomes sensitive to pain.

“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 fact,” the brief said.

The reasoning of the pro-abortion precedents did not take into account policy changes that better allow women to have both careers and families or the provision of “safe havens” to shelter newborn children without penalty. These precedents were based in outdated ideas about contraception effectiveness and access.

Any claim that preserving Roe and abortion access is critical to women’s advancement is a “demeaning view of women.” The claim “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,” the brief argued.

“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,” the brief continued.

“This court has before it the strongest arguments for and against overruling— from the parties, the United States, and 130 amicus briefs exploring every relevant issue,” the brief said. “The fundamental question at issue here will keep returning until this court addresses it. This is the case to confront— and reject—Roe and Casey.”

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