Abortion lands in the wheelhouse of the Supreme Court, for better or for worse

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At times, you may have been forgiven for thinking that the oral arguments on the Dobbs case were taking place before the Pennsylvania State Senate Health and Human Services Committee or some other legislative body.

Dobbs v. Jackson Women’s Health Organization, involving Mississippi’s 15-week abortion ban, is, of course, the most significant abortion case to come to the Supreme Court in decades. The arguments, as you would expect, involved many complex legal discussions.

They also dabbled at length on policy-making issues that are not rightfully within the purview of the Supreme Court – and which the Court should never have addressed in Roe and Casey, the abortion cases that are on the table. point of collapsing because of their manifest constitutional misery.

Indeed, the discussion was relatively light on the supposed source of a constitutional right to abortion. Supporters opposed to the Mississippi law placed it somewhere in the 14th Amendment, although, as Justice Samuel Alito pointed out, no one at the time of the passage of the amendment believed it guaranteed a extended right to abortion.

Judge Sonia Sotomayor even said at one point that the Supreme Court is constantly making decisions that are not directly grounded in the Constitution.

In Roe and Casey, the court made the mistake of thinking that it should be the arbiter of a heavy social and moral issue, and essentially crafted a nation-wide abortion policy without any input. democratic. Because pro-choicers love the outcome, they’ve invested themselves in the idea that Supreme Court precedents, even bad ones, should be on the books forever.

One of the most mind-boggling moments in the arguments was when Alito nearly cornered Administration Solicitor General Elizabeth Prelogar in arguing that the Supreme Court would have been wrong to overturn its hideous ruling too soon in favor of segregation in Plessy v. Ferguson. .

Conservative judges and abortion rights advocates have been back and forth over where the Supreme Court should draw the line to allow restrictions on abortions. Prelogar and Julie Rickelman, a lawyer representing the Mississippi Abortion Clinic in the case, insisted she should be fetal viability, around 23 or 24 weeks pregnant.

According to Rickelman, the viability line is “objectively verifiable and does not address philosophical questions about the beginning of life.” It is in doubt, however. Some premature babies have survived after being born at 21 weeks, and many abortion rights advocates deny that unborn babies have any moral status at any time during pregnancy.

Sotomayor said believing that an unborn baby has the right to be protected by the law is a religious point of view. If so, why is the Supreme Court imposing its “religious view” that the state can protect a fetus after 24 weeks, but not before? She and her colleagues sit on the highest court in the land, not the Sanhedrin.

If the Supreme Court overturns Roe and Casey next year, the first political reaction would be thermonuclear. Yet in the bluer states, where voters are most in favor of the right to abortion, nothing would change. The Red States would decide to restrict abortion, but there is a good chance that these measures will be popular locally.

Would they like to irritate and motivate voters in the Blue States? May be. But Democrat Terry McAuliffe was unsuccessful in trying to use Texas’ abortion law as a political stick in the Virginia gubernatorial race last month.

So it could be that the decentralized nature of the American system – with various state legislatures working their will in a messy patchwork worthy of a large and diverse continental nation – results in an abortion arrangement that is broadly acceptable to most. people, if not necessarily morally or logically consistent.

This may not be satisfactory for both sides, but it would be more democratic and sensible than looking to nine judges to, in their wisdom, dictate policy from above.


Rich Lowry is editor of the National Review.


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