Mississippi’s recent call for the Supreme Court to overturn Roe v. Wade, the landmark 1973 ruling that made abortion lawful throughout the United States, has been warmly received by pro-life activists who say it could be the vehicle the court uses to finally right what they consider to be an egregious wrong.
Mississippi’s petition for review says the caselaw is wrong and notes that the state enacted H.B. 1510, the Gestational Age Act in 2018, which it says “protects the health of mothers, the dignity of unborn children, and the integrity of the medical profession and society by allowing abortions after 15 weeks’ gestational age only in medical emergencies or for severe fetal abnormality.”
The Magnolia State statute has been enjoined by the federal courts, prompting the appeal to the Supreme Court.
Lynn Fitch, the state’s Republican attorney general, filed a brief with the court July 22 arguing that Roe v. Wade is “dangerously corrosive to our constitutional system.” She urged that the 48-year-old precedent be reversed, saying that a state may prohibit elective abortions before the unborn baby is viable for life outside the womb.
It may do so because “nothing in constitutional text, structure, history, or tradition supports a right to abortion,” she wrote. “A prohibition on elective abortions is therefore constitutional if it satisfies the rational basis review that applies to all laws.”
“This case is made hard only because Roe v. Wade … and Planned Parenthood of Southeastern Pennsylvania v. Casey,” a 1992 Supreme Court ruling, “hold that the Constitution protects a right to abortion.” Those precedents held that “a state law restricting abortion may not pose an ‘undue burden’ on obtaining an abortion before viability.”
“Roe based a right to abortion on decisions protecting aspects of privacy under the Due Process Clause. … but Roe broke from prior cases by invoking a general ‘right of privacy’ unmoored from the Constitution.”
The defense of Roe’s result appearing in the Casey decision “repeats Roe’s flaws by failing to tie a right to abortion to anything in the Constitution. And abortion is fundamentally different from any right this Court has ever endorsed. No other right involves, as abortion does, ‘the purposeful termination of a potential life,’” Fitch wrote, quoting Harris v. McRae (1980). “So Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.”
The justices of the Supreme Court took nearly a year to decide whether to hear the appeal, known as Dobbs v. Jackson Women’s Health Organization, court file 19-1392, which was filed with the court June 15, 2020. Thomas E. Dobbs is the state health officer of the Mississippi Department of Health.
When it began considering the petition for review, liberal Justice Ruth Bader Ginsburg was alive, but she died Sept. 18, 2020. She was replaced weeks later by then-President Donald Trump’s nominee, Justice Amy Coney Barrett, and the conservative majority on the 9-member court increased from 5 to 6. When the members of the high court voted to accept the case May 17, 2021, no justices indicated they disagreed. The oral argument in the appeal has not yet been scheduled.
Mississippi Gov. Tate Reeves, a Republican, hailed the court’s decision to accept the appeal, saying at the time that a review of the nation’s abortion laws was “long past due.”
On June 29, 2020, when Ginsburg was alive, a divided court ruled 5-4 in June Medical Services LLC v. Russo, that Louisiana’s Act 620 that required abortionists to have hospital admitting privileges close to where the procedure took place was unconstitutional, as previously reported by The Epoch Times.
Justice Stephen Breyer wrote the plurality opinion, representing his views along with those of three other liberal justices, including Ginsburg. Breyer cited the Casey precedent repeatedly. Chief Justice John Roberts, considered to be a member of the conservative bloc on the court, wrote his own separate concurring opinion agreeing with the result. Roberts cited both the Roe and Casey precedents. Four conservative justices dissented.
In the Dobbs case, the court said in an unsigned order that it would consider only “whether all pre-viability prohibitions on elective abortions are unconstitutional,” setting the stage for a legal battle over Roe and Casey.
The high court also voted March 29 to hear a separate appeal that could clear the way for a future defense of a 2018 Kentucky ban on dilation and evacuation (D&E) abortions. The case, Cameron v. EMW Women’s Surgical Center, court file 20-601, is scheduled for oral argument Oct. 12.
Then-Kentucky Gov. Matt Bevin, a Republican, signed the law, the Human Rights of Unborn Children Act, which stopped D&E abortions after 11 weeks of pregnancy and was subsequently enjoined by federal courts. The succeeding administration of Gov. Andy Beshear, a Democrat, refused to defend the statute in court, but Kentucky Attorney General Daniel Cameron, a Republican, indicated that he wanted to do so.
The legal issue to be examined isn’t the constitutionality of the Kentucky statute as such, but standing—that is, whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law.
Racism and Abortion
Mat Staver, founder and chairman of Liberty Counsel, a public interest law firm that filed a friend-of-the-court brief in the case, said he is optimistic about the Dobbs case.
“I think that we are on the verge of potentially discarding Roe v. Wade,” Staver told The Epoch Times in an interview.
“I have no doubt that I will see the overturning of Roe v. Wade in my lifetime. I believe this is the case that could do it,” he said.
The Supreme Court would not have taken the case if it wasn’t considering reversing the abortion precedent, Staver said.
“In order to take a case, they need four justices. But in a case like this, I don’t think four justices would vote to take a case unless they could rely upon or reasonably count a fifth vote to overturn Roe because this really is a direct challenge to Roe and the Mississippi statute.”
Overturning Roe was “our focus from the very beginning,” he said.
The firm’s brief was written on behalf of: the National Hispanic Christian Leadership Conference; the Frederick Douglass Foundation; the Roman Catholic Diocese of Tyler, Texas; Deacon Keith Fournier of the Common Good Foundation; and Rev. Alveda King, president of Speak for Life and niece of Rev. Dr. Martin Luther King Jr.
“Our case has a very unique component to it because it puts abortion and the Supreme Court decisions directly on the foundation of racist eugenics to eliminate black and brown populations,” Staver said.
“Abortion grew out of Darwinian eugenics to eliminate certain races in order to evolve a superior, quote, unquote, superior white race,” he said.
“On the Origin of Species” author and naturalist Charles Darwin “was a white supremacist, and he believed that whites were more evolved than other minorities, particularly blacks and others. ”
Planned Parenthood founder Margaret Sanger “was a follower of Charles Darwin, so was Adolf Hitler. And so Sanger with her contraception clinics wanted to eliminate these ‘undesirable’ races.”
When the Supreme Court issued in 1973 the Roe v. Wade decision, Sanger’s organization, Planned Parenthood, opened abortion clinics, following on Sanger’s work with contraception clinics. “And that’s the reason why even to this day, these clinics are in predominantly black and brown neighborhoods,” Staver said.
Catherine Glenn Foster, president and CEO of Americans United for Life, said Attorney General Fitch’s Supreme Court brief was “right on the money.”
“In Roe v. Wade, and its deadly progeny Planned Parenthood v. Casey, the Court conjured constitutional fictions to justify the unjustifiable,” Foster told The Epoch Times via email.
“The Court rejected the first and foundational human right to life. The Court condemned millions to death by abortion and a toxic culture of moral indifference. The Court, through its abortion rulings, has done violence to the American way of life. Now the Court has the chance to set things right. The Court must ultimately restore the human right to life in our culture, law, and policy, and it starts by relinquishing control over these decisions to the American people.”
The conventional thinking is that while the Supreme Court could overturn Roe v. Wade, narrowing its reach seems more likely given the court’s general reluctance to disturb precedent.
The court could also take aim at Planned Parenthood v. Casey, which held that states can’t impose significant restrictions on abortion before a fetus becomes viable for life outside the womb. The Casey ruling didn’t specify when viability occurs but suggested it was at about the 24-week gestation mark.
Curt Levey, president of the Committee for Justice, said the court may well uphold the Mississippi law while at the same time refusing to reverse Roe v. Wade.
“It’s unusual, certainly, for one of the parties, at least in these cases about abortion restrictions, to openly ask that Roe be overturned. But I guess it’s a different day now that Barrett is on the court,” Levey told The Epoch Times in an interview.
The Roe v. Wade precedent will “probably not” be reversed, he said, adding, “if I had to guess I think the court will uphold the Mississippi statute.”
“I don’t think anyone would argue that the state of the law, basically, is that there’s … a constitutional right to abortion up till viability. And the court could say ‘no, it’s not up till viability; it’s up until 15 weeks,’ which is basically what the Mississippi statute says.”
Even if the court were to overturn Roe v. Wade, that is, if it “literally said that there was no constitutional right to abortion, then it would be up to the states, except to the extent that Congress legislated in that area.”
In progressive states, there would be “continuous abortion on demand,” and in conservative states abortion “would be prohibited, except perhaps” in case of rape, incest, or the mother’s life being jeopardized by childbirth.
But the changed playing field would make things interesting because it would force some of those red states to make some difficult decisions, Levey said.
“It’s one thing to pass a law that eliminates virtually all abortion when you know that it’s going to be struck down. It’s another thing to pass that law when it actually will be the governing law.”
“So I think even some of the more absolute abortion bans—sorry to disappoint pro-life folks— but I suspect they’d be a little bit less absolute if Roe v. Wade were overturned just because … they know that whatever the policy they write is actually going to be enacted.”
Fighting for Abortion Rights
The Epoch Times reached out for comment to Hillary Schneller, senior staff attorney at the Center for Reproductive Rights and counsel of record for Jackson Women’s Health Organization, but had not received a reply as of press time.
However, Nancy Northup, president and CEO of the Center for Reproductive Rights, said Mississippi has embraced an “extreme and regressive strategy” as an “avalanche of abortion bans and restrictions … are being passed across the country.”
“Their goal is for the Supreme Court to take away our right to control our own bodies and our own futures—not just in Mississippi, but everywhere,” Northup said in a statement.
“Let’s be clear; any ruling in favor of Mississippi in this case overturns the core holding of Roe—the right to make a decision about whether to continue a pregnancy before viability. The Court has held that the Constitution guarantees this right. If Roe falls, half the states in the country are poised to ban abortion entirely. Women of child-bearing age in the U.S. have never known a world in which they don’t have this basic right, and we will keep fighting to make sure they never will.”
Correction: In the original article the organization headed by Alveda King was incorrectly identified. On July 29 it was correctly named as Speak for Life. The Epoch Times regrets the error.