Will Roe v. Wade finally be overturned? Many are asking that question after the Supreme Court agreed to hear a case that could do just that. The case, Dobbs v. Jackson Women’s Health Organization, involves a Mississippi law prohibiting elective abortions after 15 weeks, unless there is a medical emergency or if the baby has severe abnormalities. 

The only licensed abortion facility in Mississippi, along with one of its doctors, challenged the law in court. They argue that based on the court’s abortion precedent, any ban on pre-viability abortions (those performed earlier than the 24th week of pregnancy, when a baby is most likely able to survive outside the womb) is unconstitutional, and the courts cannot even consider justifications offered by the state for such a law, including whether the unborn baby experiences pain during the abortion. Before Dobbs, the Supreme Court had declined to hear several other cases that struck down pre-viability bans.

Mississippi argues that its law is not a ban on pre-viability abortions but rather a regulation that limits the time frame in which to decide whether to abort a baby. In fact, the state’s lone abortion facility does not even provide abortions after 16 weeks. Thus, the plaintiffs are really arguing about a one-week difference in time—whether it is unconstitutional for a woman to choose to have an elective abortion before 15 weeks rather than before 16 weeks. 

Mississippi chose the 15-week mark because most abortions after that point are by dilation and evacuation, which the legislature stated is “a barbaric practice, dangerous for the maternal patient, and demeaning to the medical professional.” Mississippi based that argument on the Supreme Court’s decision in Gonzales v. Carhart, where it upheld a ban on late-term partial-birth abortion in part because of the negative impact the gruesome abortion procedure had on medical professionals who had taken an oath to preserve life.

Mississippi also attempted to argue in the lower courts that the 15-week mark makes sense because the unborn baby feels pain from the abortion. But the trial court refused to hear the medical evidence of fetal pain because it concluded that Roe makes irrelevant any justification for a law that bans pre-viability abortions. The appeals court upheld the trial court’s decision.

One lone judge in the Court of Appeals highlighted some particularly troubling views of the District Court’s decision. The District Court had said it was sexist to believe in protection of the unborn, relying on the notion that in order for women to fully participate in society they needed the option to choose an elective abortion. 

The Court of Appeals judge also took issue with the ruling that Mississippi was prohibited from engaging in discovery on the question of fetal pain. He explained that discovery is supposed to be broad and should allow for exploration of facts that could help a party make a good faith argument that the law should change—here, that Roe should be overruled. “If courts grant convicted murderers the right to discovery to mitigate pain from execution [in cases challenging the methods of capital punishment], there’s no reason they shouldn’t be even more solicitous of innocent babies.” The Supreme Court agreed to hear the case but limited the case to the question of whether “all pre-viability prohibitions on elective abortions are unconstitutional.” 

With the improvement in medical technology since Roe demonstrating unquestionably that the fetus is a human life that experiences pain at certain points in development, it would seem the court should seize this opportunity to overturn Roe. But, sadly, politics and court legitimacy have proven more important to the court than protecting unborn human life. Perhaps the votes now exist to prioritize human life over pride.

Although the Supreme Court has acknowledged that abortion destroys a “living organism,” it has somehow distinguished that “living organism” from a “person” that deserves protection. In fact, when the Roe court faced the question of when life begins, it not only failed to answer the question, but said it did not need to. Instead, it created a right for women to destroy what the court said might (or might not) be life. Then, nearly two decades later, when the Planned Parenthood v. Casey court was presented with the opportunity to reverse the poorly reasoned Roe decision, the court not only refused to answer the question left unanswered in Roe but said it did not even matter if Roe got it wrong. Instead, to preserve the court’s legitimacy in the public’s eye, it needed to affirm Roe, even if it was wrongly decided. As Justice Thomas wrote in a 2019 opinion when the court refused to hear a case that had declared unconstitutional Alabama’s ban on all dismemberment abortions, “our abortion jurisprudence has spiraled out of control.”

Several states have been active this past year in taking steps to protect unborn human life. States have enacted laws setting gestational age limits on abortion, banning abortion if Roe is overturned, and protecting babies born alive after an attempted abortion. For Mississippi to win this case, the court has to squarely confront its prior precedents that established an unqualified right of women to abort a baby before it is considered viable. Since viability has been the cornerstone of the abortion precedent since Casey, the court could use this opportunity to revisit whether the Constitution protects a right to abortion.  

With hundreds of unborn babies aborted each day in the United States, we need to pray the Supreme Court takes the opportunity to do what it refused to do in Roe—conclude that abortion involves the taking of human life and, therefore, cannot be constitutionally protected. ©2021 Rena Lindevaldsen

 

Rena Lindevaldsen is professor of law at Liberty University School of Law, in Lynchburg, Virginia.

 

Editor’s Note: The Billy Graham Evangelistic Association and Samaritan’s Purse have signed onto an amicus brief encouraging the court to consider the “personhood” of the unborn.