Dobbs… the MIssissippi abortion law that is now before the Supreme Court. The Court has completed hearing arguments in the case and is likely to rule on the case in June 2022. At issue is whether the state of Mississippi has the right to prohibit abortion after 15 weeks gestation. However, there are much broader issues at stake, and I elaborate on some of those below.

The Supreme Court ruling in Roe v Wade in 1973 (and in the concurrent ruling in Doe) found that a woman has a “right of privacy” arising from the 14th amendment “concept of personal liberty” and that the 9th amendment’s “reservation of rights to the people” combine to “encompass a woman’s decision whether or not to terminate her pregnancy.” However, that right was not absolute, and the Court went on to discuss the interest of the state in the welfare of both mother and child, the trimester system, and fetal viability. The Court also ruled that there was no agreement on when life began and that the constitution did not recognize the unborn child as a “person” having the right to life.

Furthermore (in Doe), the Court ruled that a woman could get an abortion at any stage of pregnancy for a number of reasons, especially in matters threatening her health, and that being nervous and anxious over the pregnancy could seriously affect a woman’s health. Whereas fetal viability was a threshold in Roe, the ruling in Doe opened the door for abortion up to the moment of going into labor for virtually any reason at all.

Those decisions, as we all know, immediately led to controversy in many areas of the ruling, and it has had broad and long-lasting ramifications. Legal scholars were perplexed at the time and have written much about the new “rights” of women found in the constitution. Those who wrote the amendments and advocated for them in writing and spoke aloud in favor of them never found any such implications in those amendments. The Court, it is said, simply fabricated the new “right” to abortion and then set about to justify it,

Furthermore, the 10th amendment to the constitution says (in its simplicity) that decisions on any matter not explicitly given to the United States (eg, the elected officials in congress) by the constitution are relegated to the individual states (eg the elected officials in those states). Therefore, scholars assert that the Court should never have taken the Roe and Doe cases in the first place. The Court, when ruling in Roe and Doe, said nothing about the 10th amendment, making no attempt to explain why the 10th amendment was not valid in those cases.

There are several other things that were controversial then and which have become even more so since 1973. Well before 1973, it was uniformly accepted by biologists and medical doctors, and it was written in books all over the world, that human life begins at the moment of conception. The fertilized egg contains at that moment all of the DNA it will ever have to develop into a baby, a child, and an adult, and that DNA is unique and distinct from the mother and father. Yet, the Court ruled otherwise. The issue of the new life being a “person,” and thus having the right to life under the constitution, is asserted on the basis of established science, but it was ignored by the Court.

The Court also linked the trimester system to fetal viability (ability to live outside the womb) and the interests of the states in the welfare of the mother and the unborn child. But, the time of viability is a bit different in any pregnancy (which is nominally 40 weeks duration). Advances in medical science have now given a 24 week old baby a 50% chance of surviving. However, babies born earlier have survived against all odds.

And, abortion survivors (see my earlier posts referring to the Abortion Survivors Network…now with over 350 members) strongly assert that they are not a piece of tissue to be discarded as trash. They tell us that they are people and that their lives matter. It has become increasingly hard for the Court to ignore the fact that an abortion is the taking of a human life, causing the death of a human person.

I will not discuss the details of the1992 Court ruling in Casey in this setting. However, it was in that case that the Court acknowledged the (limited) right of the states to further regulate abortion. That led to hundreds of new laws in various states (many of which are under injunction pending the outcome of the Court ruling in Dobbs). But, without Casey, the MIssissippi legislation regulating abortion would never have become law.

For the above reasons, it is hoped by Pro-Life advocates that the Court will rule that the basis for the ruling in Roe was flawed and that references to the beginning of human life and the issue of when the growing fetus becomes a person and achieves viability outside the womb are antiquated and were wrongly stated even in 1973.

The Court required at least 4 of the 9 Justices to approve taking up the Dobbs case. There was a lot of external pressure on the Court by special interest groups not to even think about the case. All of the above problems with the old rulings are well known to Pro-Abortion advocates. They fear that the Court will overturn Roe in its entirety, and that regulation of abortion will be returned to the states, according to the 10th amendment.

The National Catholic Register (Vol 97, No. 26), points out that the permissiveness of US abortion laws is among the most extreme in the world. Of 198 countries, only 59 countries permit elective abortions. Forty-five of the 59 countries limit elective abortions up to 12 weeks. Six countries limit elective abortions between 12 and 20 weeks. And, only 7 countries permit elective abortions after 20 weeks: China, Vietnam, North Korea, Singapore, Netherlands, Canada…and the United States. It is argued that the Mississippi ban on abortion after 15 weeks is not extreme, but rather it is the permitting of elective abortions after 12 weeks which is extreme.

Meanwhile, the Supreme Court ruled 6 to 3 not to block the Texas Fetal Heartbeat law from taking effect. In a twist that confounds attempts to sue the State of Texas and thus prevent the state from enforcing the law, the state is prevented from enforcing the law by the wording of the law itself. The law permits private citizens to sue those who perform abortions after a fetal heartbeat is detected on ultrasound. An ultrasound is required before an abortion is legal in Texas. The Court ruled that nobody had been harmed by the law, and those bringing the case before the Court made no claim that anyone was in imminent danger of being harmed. Yet, 3 Justices who are described as “liberal” voted to keep Texas from enforcing the law…whereas the law itself prevents Texas from enforcing the law.

This has given Pro-Life advocates reason to believe that 5-6 Justices will vote to overturn Roe and return the right to regulate abortion to the states, according to the values of the voters in those states. In Casey, the Court did bring up the issue of not placing an “undue burden” on women seeking an abortion under the rulings in Roe and Doe. The Court will have to address that issue as well. However, the issues in Casey were a consequence of Roe, and so should fall with Roe, if regulation of abortion is returned to the states. Abortion, of course, is not mentioned anywhere in the constitution, and thus its regulation is relegated to the states by the 10th amendment. However, with all of these conflicting interests, it is by no means certain how the Court will rule in Dobbs.