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Supreme Court to weigh opportunity to reverse Roe

AP file photo

WASHINGTON (BP) – The U.S. Supreme Court will consider Wednesday (Dec. 1) a case that pro-life Americans hope will finally bring an end to a permissive, nationwide abortion regime that has lasted nearly a half-century.

The justices will hear oral arguments regarding Mississippi’s 2018 Gestational Age Act, which bans abortions of unborn children whose gestational age is more than 15 weeks. Specifically, they have said their ruling will be limited to whether, as the state said in its petition to the court, “all pre-viability prohibitions on elective abortions are unconstitutional.” Viability for an unborn child, or the ability to survive outside the womb, is typically considered to be several weeks after the limit set by Mississippi’s law.

The Supreme Court’s major opinions that have controlled abortion law – Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992 – prohibit states from banning abortions before an unborn child is viable. The Roe decision legalized abortion throughout the country, while Casey affirmed Roe but permitted some state regulation of the procedure.

The options before the justices for a ruling expected to be issued by next summer include a reversal of both Roe and Casey, which would return abortion regulation to the states. Among other possibilities, the high court could uphold Mississippi’s ban and undermine Roe without overturning it explicitly.

The case offers the justices “a once-in-a-generation opportunity to revisit the court’s disastrous ruling in Roe v. Wade,” said Brent Leatherwood, acting president of the Southern Baptist Ethics & Religious Liberty Commission (ERLC).

More than 60 million lives “have been lost because of these wrongheaded decisions,” Leatherwood said in written comments. “That is a horrific statistic. And it is all the more galling because among the many responsibilities of government is protecting innocent life from harm. How much more important is that responsibility when it comes to protecting preborn lives that cannot even speak for themselves?

“Christians have long pleaded the case that America must recognize the inherent dignity of our most vulnerable neighbors. This case gives us another chance to do so, and the court should not miss this opportunity.”

The ERLC and other pro-life organizations have joined Mississippi in urging the Supreme Court not only to uphold the state ban but reverse Roe and Casey.

SBC President Ed Litton called for prayer in advance of the oral arguments.

“As Christians who are pro-life, we can fight for life this week from our knees in prayer,” Litton said in a tweet Monday (Nov. 29). “We must beg God to end abortion in the United States. This case will not be the final word, but it could be critically important. Pray for justice for the unborn.”

This case – Dobbs v. Jackson Women’s Health Organization – does not mark the first time pro-life advocates have hoped the Supreme Court was poised to reverse Roe. The high court failed to do so in Webster v. Reproductive Health Services in 1989 and Casey three years later, despite the addition of justices nominated by Republican presidents beginning in 1981.

The confirmation of three nominees by President Trump, however, has restored hope to pro-lifers. Associate Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are considered to be conservatives who may be prepared to correct what critics of Roe say is a decision that has had devastating consequences.

The justices “created a new constitutional right that doesn’t exist anywhere in the Constitution, and it has set our nation on a deadly course” of more than 60 million aborted babies, said Denise Harle, senior counsel for Alliance Defending Freedom and director of its Center for Life. “And the decision sent us into a very divisive national deadlock where the voters are not able to exert their will and pass commonsense laws that protect the life and health of moms and babies in the womb.”

Pro-life lawyers contend designating viability – the Supreme Court’s focus in the case – as the point at which abortions may be restricted is impractical.

The abortion providers “don’t even dispute that viability is a changing line that actually differs from pregnancy to pregnancy, not to mention differs as each year passes and we have advancements in medical technology,” Harle told Baptist Press in a phone interview.

“[B]ecause that’s such a lynchpin of [this] bad abortion jurisprudence,” she said, “I think that’s going to be also a key talking point and hopefully something that the court just throws out and says, ‘This makes no sense. Viability is continually moving, and it’s unknowable. And that sort of scientific … happenstance is not a sound basis” for a constitutionally protected right.

Carolyn McDonnell, staff counsel with Americans United for Life, said in a written analysis the “viability line in Casey’s undue burden test is arbitrary and unworkable, preventing states from legislating for the health of pregnant women, integrity of the medical profession, and dignity of unborn children.”

In asserting a right to abortion before viability “is the most central principle” of Roe, the Casey ruling declared a law is unconstitutional if it places an “undue burden” on a woman seeking an abortion. The Jackson Women’s Health Organization, the lone abortion clinic in Mississippi, said in its brief for the high court the Casey decision “reaffirmed that the viability line strikes a principled and workable balance between individual liberty and any countervailing government interests.”

During the oral arguments, she will be listening for how much attention the justices pay to the “developments in science and medicine” since 1973, Harle told BP. For one thing, the point of viability for an unborn child has dropped by multiple weeks since the Roe opinion.

Also, women have made “substantial advancements in society,” and single mothers now have support in their community from churches, pregnancy centers and neighbors, Harle said.

Roe is “based on outdated science and [an] outdated understanding of society,” she said. “And so I’m going to be interested to hear whether the justices are taking note of just how far we’ve come.”

When it comes to forecasting the decision, Harle said the “legal justification is there” for overturning Roe but it is “truly impossible to predict” what the Supreme Court will do.

“I think I can say with certainty that the possibility of overturning Roe is on the table,” she said. “I believe it is the correct outcome if we are to uphold the meaning of the Constitution. I believe it is the correct outcome as a policy matter if we are going to protect women’s physical and emotional health and protect the life of the unborn, our next generation.”

McDonnell said, “With the disarray of abortion case law, it is likely that the Supreme Court will limit, if not outright overturn, Casey’s undue burden standard and possibly” the Roe decision.

The Biden administration’s solicitor general, Elizabeth Prelogar, will join abortion rights lawyer Julie Rikelman during the oral arguments in urging the Supreme Court to invalidate the Mississippi law and uphold the Roe and Casey opinions. Scott Stewart, Mississippi’s solicitor general, will defend the state’s ban.

A federal judge ruled in 2018 the Mississippi law is unconstitutional because it prohibits pre-viability abortions. The Fifth Circuit Court of Appeals in New Orleans affirmed the ruling the following year.

Mississippi’s ban permits an exception for threats to the life or “substantial and irreversible impairment of a major bodily function” of the mother. It also allows an exception for a “severe fetal abnormality” that “is incompatible with life outside the womb.”

In July, the ERLC and five other religious organizations joined a friend-of-the-court brief filed by the U.S. Conference of Catholic Bishops that told the Supreme Court its viability rule in the Roe and Casey opinions “is deeply flawed.” The brief said the U.S. Constitution “does not create a right to an abortion of an unborn child before viability or at any other stage of pregnancy.”

If Roe is overturned, 26 states are either certain or likely to prohibit abortion, according to an Oct. 28 analysis by the Guttmacher Institute, a research and policy organization that supports abortion rights.

The United States has one of the most permissive abortion policies in the world. A study released in July by the pro-life Charlotte Lozier Institute showed 47 of 50 European nations ban elective abortions or restrict them to 15 weeks or earlier. The United States is one of seven countries that permit elective abortions after 20 weeks’ gestation, according to the findings section of the 2018 Mississippi legislation.

The Supreme Court heard oral arguments Nov. 1 regarding whether a Texas abortion ban when a fetal heartbeat can be detected may remain in effect while the case is being adjudicated. The Texas law prohibits abortion as early as five to six weeks into pregnancy.