Indefensible Roe – The Policy Track

The Court has not been impartial but pro-choice.

Having established that “The Constitution does not explicitly mention any right of privacy,” as the Court accurately noted in Roe, and that the Court relied on that virtual right to further invent another constitutional “right” to abortion with no basis in law, history or tradition, we turn to the Court’s dreadful shift to policymaking and why it, too, is indefensible.

While the media’s caricature of pro-life laws around the country at the time of Roe is that they sought to completely ban it, without regard for women, the facts of the case in Roe were, of course, different. I think by now every reader knows that the media lies. Therefore, remember that when it comes to the coverage you hear around Dobbs v. Jackson Women’s Health Organization.

The Texas law at issue in Roe actually had an exception for “medical advice for the purpose of saving the mother’s life.” If Roe were overturned, it does not mean abortion will be criminalized everywhere for every reason as some will have you believe. Instead, it would mean that laws would more accurately reflect the convictions of most Americans in their localities. What the Supreme Court did in Roe was impose its preferred view of abortion policy robbing “we the people” of a voice in the matter.

In Dobbs, Mississippi passed a law establishing a policy of restricting abortions after 15 weeks only to the cases of medical emergencies and or severe fetal abnormalities. There is no basis, constitutional or otherwise, for the Supreme Court to second guess a state’s policy in such a matter.

For all the talk of “women’s rights,” the Court’s stated “viability” test for reviewing abortion policy entirely ignores women’s concerns. If the answer to the constitutionality of Mississippi’s law hinges merely on the developmental stage of the baby, where does that leave women’s interests?

As we stated in our brief before the Court: “Limiting the complex and challenging scientific and moral issues linked to abortion to a simple consideration of the physical development of the unborn baby and the technology available at any given time to preserve the child’s life is a tragic outcome that the Court should never promote.” We argue, “Women’s interests should never be irrelevant in the abortion context at every stage of pregnancy, including at the pre-viability stage.”

This was one of Justice Ruth Bader Ginsburg’s criticisms of the Court’s overreach. “Roe isn’t really about the woman’s choice, is it?” she famously said, “It’s about the doctor’s freedom to practice … it wasn’t woman-centered, it was physician-centered.”

The Supreme Court’s disjointed analyses on abortion jurisprudence prompted the lower court to dismiss the state’s interest in women’s welfare as “pure gaslighting,” going so far as to accuse the state of “sexism” in enacting this law. The district court assumed as the courts so often do, that the pro-abortion side of this discussion speaks for all women. It does not.

The Supreme Court has done this, too. In Roe, it concentrated on the detrimental effects of carrying an “unwanted child.”  The focus was that “Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent.” But what about the detrimental effects of abortion on women?

After 34 years of failed abortion policy meddling, the Court was forced to recognize in Carhart the deep trauma that can follow an abortion:

It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child.

That language was nowhere to be found in Roe, and it is way too rare still today.

On appeal, Judge James Ho of the Fifth Circuit noted the lower court’s one-sided approach, saying he was “[D]eeply troubled by how the district court handled this case,” noting the court “display[ed] an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life.”

Beyond the Court’s wrongheaded quasi-jurisprudence on abortion, its approach to the entire topic has been less than balanced, honest, and straightforward. The Court has not been impartial but pro-choice. As it admitted in Carhart, “The Court at times employed an antagonistic “‘canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.’”

It is time for the Court to stop advocating for one side of the issue, stacking the legal deck in favor of abortion on demand. It is true that the Court abandoned the trimester approach of Roe for a more nuanced “viability”/ “undue burden” policy preference in Casey, but different does not mean balanced.

One of the clear errors of the Court’s venture into policymaking is that it cannot adjust to advances in the sciences as quickly as legislators can adjust. The Court’s judgment was strictly based on scientific knowledge in 1973. Back then there were no personal computers as we know them, no internet, the iPhone had not been invented, the microwave wasn’t even in widespread use. We are still living under the abortion policy of the era, ignoring decades of advances, like the ultrasound which gives us a great window into the womb. We now know, for example, that babies feel pain at around 12 weeks. And scientific development is only getting better. Why should states be forced to ignore this by Supreme Court decree, as they inevitably are today?

Mississippi’s proposed abortion policy is more than reasonable and more reflective of the science of our time. The United States is in fact only one of seven countries that allow abortion after 20 weeks of pregnancy. The Supreme Court policy choices have not only permitted this but have virtually kept us stuck in this position, despite scientific advances, by its continued, extraconstitutional, micro-oversight of state policies based on outdated data.

It is unjustifiable and indefensible. Dobbs presents a great opportunity for the Court to reverse course and get with the times.