How the Supreme Court Should Correct Its Flawed Roe v. Wade Decision
December 2, 2021 9:58pm
Yesterday, the Supreme Court heard oral arguments in the case of Dobbs v. Jackson Women’s Health Organization. That case has the potential to correct the Court's flawed 1973 Roe v. Wade decision.
In 2018, the State of Mississippi passed a law that prohibits abortions after 15 weeks. That law was challenged in a lawsuit filed by Jackson Women’s Health Organization, the state's only abortion clinic. The District Court for the Southern District of Mississippi and the 5th Circuit Court of Appeals both struck down the law as unconstitutional. So the State appealed that ruling to the Supreme Court which granted a Writ of Certiorari, meaning they'd hear the case.
Most people who have an opinion on abortion focus on whether or not it is moral to kill a human baby in the womb. I'm against abortion. I think it is morally wrong. But that is not the argument that needs to be considered by the Court. Because whether someone is pro-life or pro-abortion is legally irrelevant. Roe v. Wade was an unconstitutional federal power grab. Constitutionally, abortion is a state issue not a federal issue.
The court of original jurisdiction in Texas should have dismissed it in 1970. But it didn't. And in 1973, the US Supreme Court conjured up an imaginary constitutional right to an abortion by finding a non-existent right to privacy in the due process clause of the 14th Amendment
At 15 weeks, a baby in the womb has already developed into a very clear human form. Although the child is only about 4 inches long and weighs only around 2 1/2 ounces, the baby has an obvious human head, a neck, a torso, two arms with hands, and two legs with feet. And on those hands and feet are fingers and toes. The baby's heart is beating also. It is indisputable that it is a pre-born baby. It is not a meaningless clump of cells.
The majority of abortions performed after 15 weeks are dilation and evacuation procedures that use surgical instruments to crush the baby's skull and tear his or her body to pieces before removing the dead child from the womb. Well, the people of Mississippi, through their elected representatives and governor, have decided they don't want that done in their state. Is such a state law constitutional? Yes!
The Supreme Court got it wrong with Roe v. Wade. They can now correct that error and allow the states to enact their own abortion laws. It is at the state level where the moral arguments need to be made. Would some states have very permissive abortion laws? Yes. Do I like that? No. But I put our Constitution first. And the Constitution very clearly allows states to make their own laws on that subject.
The federal government is only supposed to deal with the specific responsibilities listed in Article 1, Section 8 of our Constitution. And the 10th Amendment says the powers not delegated to Congress belong to the States. Since abortion legislation is not listed as a federal power, regulation of abortion belongs to the States.
The Supreme Court's role is not to determine if abortion is good or bad. It is not to determine if abortion should be allowed in America or not. The Supreme Court's sole role is to determine whether or not states may have their own laws regulating abortions. And the Constitution clearly says they can. So there is only one constitutionally correct ruling for the Court. And that's to find in favor Mississippi and uphold their law.
The issue before the Court is one of Separation of Powers. It is NOT one of "abortion" or "privacy." That is so obvious, there shouldn't even be debate about it. If you don't understand what I'm saying, or if you think what I'm saying is wrong, go read the Constitution for yourself. I'll even give you an incentive to read it. If you read the Constitution, I'll pay you $1000 for every time you find the word "abortion" or "privacy" in it. Just cite for me the location of each time either word appears, and I'll send you a thousand dollars for each accurate citation.
It is a fool's errand to predict the outcome of a Supreme Court case. But I predict the Court will uphold Mississippi's law in a 5 - 4 ruling (with Thomas, Alito, Gorsuch, Kavanaugh, and Barrett forming the majority and Breyer, Roberts, Sotomayor, and Kagan dissenting).
We'll get the Court's decision in the Spring.