The Supreme Court on Monday agreed to hear Mississippi’s appeal in Dobbs v. Jackson Women’s Health Organization to decide the fate of the state’s Gestational Age Act. That law, passed in 2018 and held in limbo ever since by the courts, bans abortions after 15 weeks except “in a medical emergency or in case of a severe fetal abnormality.” Nothing in the text or history of the Constitution bars such laws, and the Court should say so.
Better still, it should put an end to the long charade of judge-invented abortion law. The Court should say that Roe v. Wade never had any legitimate basis in our Constitution, and return the issue to the people’s representatives. It should do so precisely because this issue is too important not to be decided by the people.
Seven men in black robes started this. For 48 years, using a shifting series of rationales — emanations from penumbras, a woman’s “own concept of existence, of meaning, of the universe, and of the mystery of human life” — the Court has been winging it. Making up the rules has led to making up more rules: What burdens on abortion are “undue?” Should the court apply a “balancing test?” Even Chief Justice John Roberts has mocked that project: “There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were.”
Meanwhile, with each passing year, modern medicine finds new ways to save babies delivered earlier and earlier, and modern science finds new ways to bring us face to face with the elementary biological fact that the unborn are individual human beings. Roe was supposed to make law rest on science instead of text and tradition, but real science accepts new discoveries. The refusal of judges and lawyers to adjust to new science is a sign that they were better off sticking to reading laws.
Roe has not settled the issue or removed it from our politics; quite the contrary. As Justice Antonin Scalia once wrote, “to portray Roe as the statesmanlike ‘settlement’ of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. . . . Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.” Nothing in the three decades since he wrote those words has lessened their power.
There is a time and place for the courts to move gradually, letting the law develop one case at a time. But there is nothing new under the sun in arguments about the constitutional pedigree of Roe v. Wade. A majority of the Court knows that Roe is nonsense. It is past time for the justices to say so. Sixty-two million Americans have died. How many more need to die before the judiciary exercises its one, indispensable role: to say what the Constitution is?