{"id":92049,"date":"2021-09-02T11:00:35","date_gmt":"2021-09-02T15:00:35","guid":{"rendered":"https:\/\/ifamnews.com\/?p=92049"},"modified":"2021-09-02T12:45:46","modified_gmt":"2021-09-02T16:45:46","slug":"the-mother-of-all-rulings-the-coming-end-of-roe-v-wade-part-one","status":"publish","type":"post","link":"https:\/\/ifamnews.com\/en\/the-mother-of-all-rulings-the-coming-end-of-roe-v-wade-part-one","title":{"rendered":"The mother of all rulings: the coming end of Roe v Wade \u2013 part one"},"content":{"rendered":"\n

Introduction<\/strong><\/p>\n\n\n\n

The US Supreme Court term wrapped up a few weeks back. While there were some important rulings, the term lacked the type of blockbuster case that would help shape political discussion in the country and around the world, and impact the culture over the long term. The same won\u2019t be the situation some 10 months from now when the Court will likely issue a ruling in the most consequential legal case it has heard in at least fifty years. It\u2019s a case that squarely examines whether there is a right to abortion under the United States Constitution. This case will roil the country and impact the body politic like no other case in most people\u2019s lifetime, very likely becoming a dominant subject of public discourse for much of 2022 and beyond.  In Part One of this article, I review the writings of prominent legal scholars who make a convincing case that Roe v Wade<\/em> and Planned Parenthood v. Casey<\/em> were egregiously wrongly decided, leading them to conclude that there is no right to abortion in the US Constitution.  I also outline the case of Dobbs v Jackson Women\u2019s Health Organization<\/em> which presents a full-on frontal assault to the notion that there is a constitutional right to abortion. In Part Two, I begin to address perhaps the most important aspect of this case \u2013 politics and how political pressure may be the only thing that could save the Court\u2019s massively wrong and deadly conclusion that abortion is a federal constitutional right. In Part Three, I do some prognosticating to predict just how hot, intense and vicious the politics surrounding case will become, and offer a view of potential outcomes.<\/p>\n\n\n\n

Part One<\/strong><\/p>\n\n\n\n

Dobbs v Jackson Women\u2019s Health Organization<\/em> comes to the Court from the state of Mississippi with the avowed intention of overruling Roe v. Wade<\/em> and its progeny Planned Parenthood v Casey<\/em>, two of the worst decisions in Supreme Court history.<\/p>\n\n\n\n

It takes four justices on the Supreme Court to agree to hear a case. The very fact that at least four justices agreed to accept the Dobbs<\/em> case is a strong indication that the Supreme Court may have finally decided to address and, many observers believe, likely overturn the incoherent, politically-motivated ruling finding that the US Constitution contains a right to abortion.<\/p>\n\n\n\n

There can be little serious doubt that the Roe<\/em> and Casey<\/em> rulings are egregiously wrong as a matter of constitutional law. Here is how noted constitutional law professor Michael Stokes Paulsen summed things up in a two-part essay published at Public Discourse: \u201cRoe <\/em>is regarded, rightly, as one of the most consequential and controversial\u2014and one of the very worst\u2014constitutional decisions of the Supreme Court in its history. In simplest terms, Roe<\/em> created a constitutional right to abortion of the life of a living human fetus. That result, and Roe<\/em>\u2019s reasoning in support of it, are indefensible from a legal standpoint. No plausible argument from the constitutional text, no rule or principle fairly derived from its structure or internal logic or deducible from other propositions contained therein, and no credible argument from historical understanding or intention remotely supports the abortion right created in Roe. Roe v. Wade <\/em>is simply a lawless decision. I know of no serious constitutional scholar who defends Roe<\/em>\u2019s result as a faithful interpretation of the Constitution\u2019s language, understood according to its natural and original meaning, as understood at the time of its adoption, or as consistent with the original intent of its adopters in 1868\u2026.In Casey<\/em>, the Court, while nominally reaffirming Roe<\/em>\u2019s substantive due process holding, could not bring itself actually to embrace Roe<\/em>\u2019s reasoning as correct. Indeed, a majority of justices seemed to indicate they believed that the case was wrongly decided. Casey <\/em>left Roe<\/em> in place almost purely on the basis of the doctrine of stare decisis. <\/em>In other words, the justices concluded the Court should stick to Roe <\/em>\u201cwhether or not mistaken,\u201d simply because it was a precedent on which the Court had staked its authority, and it might look bad if it were to reverse itself.\u201d<\/p>\n\n\n\n

The saving of Supreme Court face has contributed to the loss of life for over sixty million unborn American children. It is now up to the conservative majority on the present Court to stop the carnage and allow the American people themselves \u2013 through their elected state representatives and through direct democracy at the ballot box \u2013 to debate and decide the conditions, if any, upon which an innocent unborn child\u2019s life should be extinguished. If the conservative majority on the Court does not do what faithful adherence to the constitution requires and rid the country of the lawless Roe<\/em> and Casey<\/em> decisions, the majority will do permanent damage to the legitimacy of the Court and, as I will address further in Part Three, threaten the future existence of the Republican party.<\/p>\n\n\n\n

At the core of the Dobbs<\/em> case is the issue of fetal viability. In Roe<\/em>, the Supreme Court majority ruled that a pregnant woman had the absolute right to abort her unborn child up until the point of viability, that is when the unborn child could survive outside the mother\u2019s womb. While tinkering with Roe\u2019s<\/em> framework, Casey<\/em> retained a woman\u2019s absolute right to abortion prior to fetal viability. (In actuality, the abortion right created by Roe<\/em> and Casey<\/em> is essentially absolute, up to the moment of birth. That is because the rulings protect abortions conducted for \u201chealth\u201d reasons such as emotional or psychological worries, and concerns about age and family.)<\/p>\n\n\n\n

Fetal viability is now generally considered to be around 24 weeks but that is a changing milestone. In 1973 when Roe<\/em> was decided, viability was thought to occur with the start of the third trimester of pregnancy, or around 27 weeks gestation. Indeed, in their petition for certiorari<\/a>, the state of Mississippi has noted that in the 1970s when Roe<\/em> was decided, \u201cMississippi could not have prohibited abortion of a 24-week fetus because back then it would not have been considered viable. Today, Mississippi could enact such a law.\u201d<\/p>\n\n\n\n

The Dobbs<\/em> case arises from legislation enacted in 2018 (the Gestational Age Act) that prohibits abortion after 15 weeks gestational age except in medical emergencies or for severe fetal abnormalities. In adopting the legislation, the state asserted several strong interests the legislation was designed to protect. This included substantially increased health risks to the mother when abortions are performed at 16 weeks gestation or later; the fact that a fetus develops neural circuitry capable of detecting and responding to pain by 10-12 weeks and at 14-20 weeks spinothalamic circuitry develops that can support a conscious awareness of pain; and that the legislation prohibits abortions six weeks after<\/em> a fetus\u2019 basic physiological functions are all present, five weeks after<\/em> the child\u2019s vital organs begin to function, and three weeks after<\/em> the child can open and close his or her fingers, make sucking motions, and sense stimuli from outside the womb.<\/p>\n\n\n\n

The incoherence of the Supreme Court\u2019s abortion jurisprudence is laid bare by this conflict: the Court has repeatedly acknowledged that states have legitimate interests \u201cfrom the outset of pregnancy\u201d in protecting the health of the mother and the life of the fetus \u201cthat may become a child\u201d but at the same time, Roe<\/em> and Casey<\/em> prohibit all pre-viability abortions. The state of Mississippi points to the obvious resolution of this conflict in its compelling merits brief<\/a>: \u201cOverruling Roe <\/em>and Casey <\/em>makes resolution of this case straightforward. The Mississippi law here prohibits abortions after 15 weeks\u2019 gestation, with exceptions for medical emergency or severe fetal abnormality. That law rationally furthers valid interests in protecting unborn life, women\u2019s health, and the medical profession\u2019s integrity. It is therefore constitutional. If this Court does not overrule Roe <\/em>and Casey<\/em>\u2019s heightened-scrutiny regime outright, it should at minimum hold that there is no pre-viability barrier to state prohibitions on abortion and uphold Mississippi\u2019s law.\u201d<\/p>\n\n\n\n

Over 80 organizations have filed briefs with the Supreme Court supporting the position taken by the state of Mississippi. This includes briefs from legal scholars, ethicists, constitutional law professors, state legislators, members of Congress, scientists and biologists, women injured by abortion, and public policy groups, among others.<\/p>\n\n\n\n

There are at least six current justices of the US Supreme Court whom many legal experts agree believe that Roe<\/em> and Casey <\/em>are unequivocally wrong. Professor Michael Stokes Paulsen ranks them in order of certainty: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh, and Chief Justice John Roberts. It will take five of the six to stick to their guns to overturn Roe<\/em> and Casey<\/em>.<\/p>\n\n\n\n

What stands in the way of ending the unprincipled and unconscionable reign of abortion jurisprudence at the US Supreme Court? Two inter-related factors: the legal doctrine of \u201cstare decisis,\u201d and politics. These factors are examined in Part Two of this article.<\/p>\n","protected":false},"excerpt":{"rendered":"

Sometime next year the US Supreme Court will issue a ruling in the most consequential legal case it has heard in decades, one that will shape the law and public discourse for decades. Pray that Roe v Wade is overturned.<\/p>\n","protected":false},"author":35,"featured_media":92227,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"give_campaign_id":0,"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"mc4wp_mailchimp_campaign":[],"jnews-multi-image_gallery":[],"jnews_single_post":{"subtitle":"Dobbs v. Jackson Women\u2019s Health Organization comes to the Court from the state of Mississippi with the avowed intention of overruling Roe v. 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