The briefs submitted on behalf of the state of Mississippi in Dobbs vs. Jackson Women’s Health – more pro-life briefs than for any other abortion case the Supreme Court has heard – are masterpieces that summarize the arguments the pro-life movement has been making against Roe v. Wade for 50 years.
Looking at the briefs in total, it’s easy to see why pro-choice forces are worried and to imagine a day in the near future when abortion on demand and for any reason will no longer be available in all 50 states. Many states are ready to protect babies as soon as Roe falls.
The Mississippi law protects babies in the womb from 15 weeks on. The briefs that support it tackle the injustices of Roe from many different angles, including arguments about how Roe v. Wade has absolutely no constitutional basis; arguments that it is defective and inaccurate historically, scientifically and medically, and obviously defective morally.
The briefs together make a powerful argument that the 1973 decision legalizing abortion throughout the nation is also obsolete. So many changes have occurred over these five decades: changes in medicine that have allowed us to know the unborn child better than ever before; growing evidence of how abortion is harmful to women and to society; the recognition that pregnancy is no longer the kind of damaging burden or impossible roadblock to one’s education and career that it was in the 1970s and before, along with an increasing acceptance of single parenting, more accommodations for pregnant employees, and nationwide Safe Haven laws that allow mothers to surrender their newborns without fear of legal repercussions. Together, the briefs are saying to the Court, it’s time to reverse Roe.
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We have in this case the largest number of sitting members of Congress in American history calling on the court to reverse Roe. One brief has a couple of hundred members of Congress expressing their position on this. Another brief was submitted by hundreds of state legislators, and what these legislators are saying is, “Let us legislate.”
Both Roe 1973 and the Planned Parenthood vs. Casey decision in 1992 acknowledge the interests of the state in the health of the mother and the life within her, yet hamper state legislators from pursuing those interests prior to viability. This viability standard itself, with no constitutional basis and a fluid meaning in medicine, is being reviewed in the Dobbs case.
That states’ interests are routinely overlooked is highlighted in the way a federal district court in Mississippi treated that law and state officials. Judges didn’t even consider any new evidence or take into account societal changes. What they did instead is look at one question: Is this a pre-viability ban on abortion? Because 15 weeks is prior to viability, they said, we don’t even want to hear anything else. We block this law because it’s about pre-viable babies What these briefs are saying is that is precisely the point that must be reconsidered because of all the things that have changed since 1973.
Some of the briefs are quite unique. One submitted by the Center for Medical Progress – the organization that began releasing videos in 2015 that showed Planned Parenthood officials discussing the harvesting of fetal body parts – makes the argument that if these babies are valuable enough to be sold for human body parts, they should be considered valuable enough to protect as human.
Another unique brief was submitted by Hannah Strege, the first frozen embryo to be adopted, implanted and born. Ms. Strege’s brief is saying her unconventional birth demonstrates she was viable even when she was in the freezer. Viability, she asserts, actually begins at conception.
Taken together, all the briefs – including one submitted by Priests for Life that focuses on the way abortion harms women – make a compelling argument to the Supreme Court that it’s time not only to revisit Roe, but to overturn it and give states back the right to protect their own families.