Supreme Court should let 'We the People' debate and decide abortion

Protesters gather outside the Supreme Court ahead of landmark case

Supporters of abortion often avoid engaging on the merits of legal challenges to Roe v. Wade, the radical 1973 decision that imposed abortion on demand up to birth across America, and instead claim that precedent protects it from reversal.

Mississippi’s legal challenge in Dobbs v. Jackson Women’s Health Organization puts this argument to the test.

Instead of relying on the pseudoscientific musings of justices from fifty years ago, we should take into account scientific advances that show the undeniable humanity of children in the womb. Lawmakers ranging from Texas to South Dakota have been pushing back against the flawed jurisprudence of Roe for years, and Mississippi’s case is the Court’s best opportunity to correct its past errors. 

An anti-abortion rights activist holds a baby doll during a protest outside the Supreme Court building, ahead of arguments in the Mississippi abortion rights case Dobbs v. Jackson Women’s Health, in Washington, U.S., December 1, 2021. REUTERS/Jonathan Ernst     TPX IMAGES OF THE DAY

We hope to see Roe completely overturned, but any decision giving the people and their elected representatives (as opposed to unelected judges) greater flexibility to determine abortion policy would be a win for the pro-life movement.

Opponents of Mississippi’s challenge rest their argument on the legal principle of stare decisis, or relying on precedent. Abortion supporters argue in their legal filing, “Two generations—spanning almost five decades—have come to depend on the availability of legal abortion, and the right to make this decision has been further cemented as critical to gender equality.” 

Supreme Court Police officers guard a barrier between anti-abortion and pro-abortion rights protesters outside the court building, ahead of arguments in the Mississippi abortion rights case Dobbs v. Jackson Women’s Health, in Washington, U.S., December 1, 2021. REUTERS/Jonathan Ernst

Standing by precedent may sound prudent, but this appeal quickly falls apart for several reasons. Firstly, precedent is supposed to provide workable guidance and establish a clear path forward, but Roe only muddied the waters. At the time, progressive legal scholars like John Hart Ely criticized the ruling, saying Roe “is not constitutional law and gives almost no sense of an obligation to try to be.” Edward Lazarus, a clerk for majority-opinion author Justice Harry Blackmun, stated that Roe’s interpretation of the Constitution “borders on the indefensible.” Justice Ruth Bader Ginsburg even conceded Roe “provoked, not resolved, conflict.” 

Anti-abortion and pro-abortion rights activists protest outside the Supreme Court building, ahead of arguments in the Mississippi abortion rights case Dobbs v. Jackson Women’s Health, in Washington, U.S., December 1, 2021. REUTERS/Jonathan Ernst

Secondly, supporters of abortion argue that without Roe, women would be reduced to second-class status. This is both false and paternalistic. Women are gaining representation in many professional areas even as abortion rates steadily decline. Legalizing abortion wasn’t a panacea that allowed women to succeed; their hard work and determination, along with good policymaking, made that possible. To claim seven male justices saved women from gender inequality is ludicrous. 

Women themselves hold a diverse range of views about abortion. For example, 79 pro-life female legislators from 45 states signed our amicus brief supporting Mississippi. The number of women in state legislatures has quintupled since Roe, and women have been a driving force behind many of the pro-life laws passed in recent years. Overturning Roe won’t reduce the number of women in the workforce or repeal the 19th Amendment; instead, it will allow women to debate the issues that matter the most to them. 

Furthermore, science has advanced, rendering Roe grossly out of date. In his majority opinion, Justice Blackmun wrote, “Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Today, a growing number of preemies are surviving and even thriving just beyond the halfway point of a typical pregnancy – such as Curtis Means from Alabama, who was born at 21 weeks and holds a new world record for premature survival. 

The science on fetal pain and development, too, has evolved. We now know that babies can feel pain as early as 12 weeks. Ironically, one scientist that abortion advocates cite in their legal filings has changed his mind about fetal pain because of new research.

According to another amicus brief, babies can suck their thumb, respond to taste, touch and pain and have experienced nearly 16 million heartbeats by the time they reach 15 weeks. In this filing, Dr. Maureen Condic, an embryologist, and the Charlotte Lozier Institute document 12 new scientific advances proving the humanity of unborn children.

Many other nations have adapted their laws to scientific progress as 47 out of 50 European nations limit elective abortion prior to 15 weeks. In America, 80 percent of the public wants to limit abortion after the first trimester, and state legislatures have enacted over 100 pro-life bills in 2021. By clinging onto Roe v. Wade, America finds itself out of step with both the global community and its own people.

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