Law & the Courts

Mississippi’s Case against Roe

The U.S. Supreme Court building in Washington, D.C., July 2, 2020 (Jonathan Ernst/Reuters)

Lynn Fitch, the attorney general of Mississippi, gets right to the point in the state’s legal brief in defense of its ban on abortions after 15 weeks’ gestation:

On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight. Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational-basis review that applies to all laws.

The two obstacles in that path are Roe v. Wade and Casey v. Planned Parenthood, which ignored text, structure, history — ignored the Constitution nearly completely — to pretend that abortion requires the federal courts to extend it special protection. Fitch and her colleagues explain patiently and thoroughly why those obstacles should be removed. The decisions were “egregiously wrong.” They have inflicted harm to self-government. They have not resulted in the stable consensus the Court has repeatedly sought and predicted. They have rested on premises about the reliability of contraception, the career prospects of women, and the state of medicine that no longer apply if they ever did. These outdated premises are at the heart of the Court’s previous findings about women’s “reliance” on constitutionalized abortion rights.

And they have proven incapable of generating a predictable body of law. The brief notes that just last year, the five justices who agreed to strike down an abortion regulation could not agree on the basis for doing it, and the five justices who agreed on what Casey meant did not reach the same judgment in the case. The justices’ inability to devise a predictable set of rules that protects abortion from legislatures, gives them some leeway to set policy, and has some plausible grounding in the Constitution does not stem from any lack of cleverness on their part. The thing cannot be done.

When the Court handed down Casey in 1992, it tacitly conceded many of the faults of Roe while insisting that the need to preserve public respect for itself as an institution required it to stick with the pretense that the Constitution protects abortion. Fitch gently but firmly observes that after nearly 30 years, this judgment has proven spectacularly wrong. It is the Court’s extraconstitutional role in setting abortion policy, more than anything else, that has diminished and distorted it.

The justices may duck this argument but cannot refute it. The Constitution, federalism, the separation of powers, and moral truth all converge on an answer in this case, and Mississippi has just identified it. The justices should have the courage and integrity to admit that the Court has been wrong.

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