On July 22, the State of Mississippi took a bold and long overdue step. In a brief defending its 15-week abortion ban against a pro-abortion challenge, the state told the United States Supreme Court that Roe v. Wade was wrongly decided and should be overturned. Rather than trying to argue that its law is compatible with the Court’s absurd and tragic ruling in Roe, which the Court reaffirmed 19 years later in Planned Parenthood v. Casey, Mississippi confronted the Court head on with the truth: Roe and Casey are “egregiously wrong” and “hopelessly unworkable,” and should be abandoned.
Mississippi’s decision to urge the Court to overturn Roe and Casey was bolstered by an outpouring of amicus briefs from doctors, scientists, legal scholars, post-abortive women, state and federal elected officials, public policy organizations, and others who filed almost 80 amicus briefs, all with the same goal of making the Court see the need to overturn Roe.
Life Legal filed an amicus brief in the case, Dobbs v. Jackson Women’s Health Organization (JWHO), a year ago, urging the Court to grant the petition and hear Mississippi’s appeal. After the Court agreed to take up the case, we filed another brief on the merits.
We argued, first, that Roe and Casey were premised on the misconception that there is a “line” or “point” of viability in pregnancy, discernible by the abortionist, that can serve to demarcate permissible from prohibited restrictions on abortion. This premise is logically, biologically, and medically untenable. Viability is a prediction, not a point in pregnancy.
Second, the myth of a point of viability does not even make for a “workable” constitutional rule. Forty years ago, the Supreme Court forbade states from putting a limit on abortion linked to gestational age (e.g. a 20- or 24-week abortion ban), because such limits infringe on the prerogatives of abortionists to provide individualized assessments of viability. But abortionists themselves do not advertise their late-term abortion work with any reference to viability. Our brief showed that abortionists themselves advertise their services in terms of gestational ages, not viability.
Our brief also contained screenshots of websites marketing late-term abortions at 24 weeks, 26 weeks, 32 weeks, even up to 35 weeks. Confronting the justices with proof of these barbaric practices, we argued that not only should states be allowed to restrict abortions, but children in the womb should be protected by the Fourteenth Amendment from procedures “indistinguishable from infanticide.”
The Court should hear argument in Dobbs v. JWHO this fall, with a decision expected by June 2022.