On May 17, it was announced that the Supreme Court had agreed to an oral…
Ahead of a new Supreme Court term, all eyes are on Mississippi abortion case
As the Supreme Court prepares to launch a potentially turbulent new term, one question among the many it will face stands head and shoulders above the rest: Are the justices prepared to acknowledge that, in legalizing abortion nearly half a century ago, their predecessors made a ghastly mistake?
In the term beginning Oct. 4, the Supreme Court’s agenda includes cases involving such high-visibility issues as public aid to religious schools, immigration and gun control. But easily the most closely watched is a case testing whether Mississippi can bar abortions from the 15th week of pregnancy on.
Viability — the point at which an unborn child can live outside the womb — is currently held to begin around the 24th week. At the center of this case — Dobbs v. Jackson Women’s Health Organization — is a state law barring abortion after the 15th week, except in response to a medical emergency or severe fetal abnormality.
Six of the court’s nine members are considered pro-life. But the Dobbs case will test how far they are prepared to go in setting aside a series of Supreme Court decisions supporting abortion dating back to 1973.
The high level of interest in the case is reflected in the filing of more than 80 friend-of-the-court briefs, many calling directly for reversal of Roe v. Wade, the 1973 decision in which an earlier Supreme Court by a 7-2 vote legalized abortion, and Planned Parenthood v. Casey, in which the court, divided 5-4 in 1992, reaffirmed Roe with only limited exceptions.
Dobbs will be argued late this year or early next year, with a decision likely next year in late June or early July.
Awaiting the result are abortion-related cases from other states, including Indiana and Arkansas, and involving restrictions such as requiring parental notification and a ban on abortion solely on the basis of Down’s syndrome. Also pending on appeal is a case from New York in which several Catholic dioceses and other religious groups are challenging a state rule requiring them to include abortion coverage in employee health plans.
Abortion is not the only sensitive issue the Supreme Court will face during its new term.
In a case from Maine (Carson v. Makin), where 143 of the 260 school districts don’t have public high schools and the state provides tuition assistance to students to attend secondary schools of their choice, parents are challenging the exclusion of schools deemed “sectarian” by the state education department. A sectarian school in this context is one that “promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.”
The Supreme Court agreed in July to review a decision by the U.S. Court of Appeals for the 1st Circuit upholding the exclusion. In their appeal, the parents say forbidding students to use state funds to attend a school where religious faith is promoted revives a “long discarded” doctrine that state aid can go to “nominally religious” schools but not to schools that “actually do religious things” to promote faith.
“This court has spent the last several decades distancing itself from this sordid doctrine but has never put it to rest. It is time to do so,” they say.
While the Dobbs case is central to the Supreme Court’s consideration of abortion, the court on Oct. 12 will take up another case linked to abortion when it hears oral arguments in a Kentucky case called Cameron v. EMW Women’s Surgical Center.
In 2018, Kentucky adopted a law placing strict limits on an abortion procedure called dilation and evacuation. A district court struck down the law, and the 6th Circuit Court of Appeals agreed, at which point the state health secretary decided not to appeal.
Kentucky Attorney General Daniel Cameron then sought to intervene in the case in order to carry it to the Supreme Court, but the 6th Circuit court said no. The Supreme Court will consider whether Cameron should be allowed to intervene and whether the ruling against the law should be reconsidered. The oral argument will be watched closely for hints to which way the court is leaning on abortion.
But by common consent, the big test is Dobbs. Here the court is being asked directly to reverse Roe v. Wade and Planned Parenthood v. Casey.
Mississippi Attorney General Lynn Fitch argues in her brief that “nothing in constitutional text, structure, history or tradition supports a right to abortion.” And besides being “egregiously wrong,” she says, Roe and Casey have proved to be “hopelessly unworkable.”
Among the points in the brief: “While crediting states with important interests [in protecting unborn human life], Roe and Casey impede states from advancing them. … Far from bringing peace to the controversy over abortion, Roe and Casey have made matters worse. … Roe and Casey are unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law — and, in doing so, harmed this court.”
In another amicus brief, the U.S. Conference of Catholic Bishops and other Church groups similarly argue that Roe and Casey were wrongly decided. Despite Casey’s promise to allow states more room to regulate abortion, the USCCB says, “lower courts are as unconstrained and unpredictable as ever in policing and enjoining state abortion polices,” while federal courts now function as “the nation’s medical review board.”
Two internationally recognized legal scholars — John Finnis of Oxford and Notre Dame and Robert George of Princeton — argue in their brief that the Roe decision violated the precedent well established in law up to then by specifically refusing to recognize the unborn child as a person entitled to equal protection and due process under the Constitution.
To recognize the personhood of the unborn would not require “unusual judicial remedies,” they say, but would simply “restore protections deeply planted in law until their uprooting in Roe.”
Russell Shaw is a contributing editor for Our Sunday Visitor.
|WHAT ABOUT TEXAS?|
|By a 5-4 vote, the Supreme Court on Sept. 1 rejected a petition by abortion providers who sought a stay of a newly enacted Texas law barring most abortions after detection of a fetal heartbeat — approximately the sixth week of pregnancy. The action allowed the law to go into effect.
The unsigned majority opinion pointed out that the court had not had the benefit of lower courts’ consideration of the issues in the case, and stressed that its action refusing a stay was “not based on any conclusion about the constitutionality of Texas’s law and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.”
While the Texas law is likely to be back before the Supreme Court eventually, that now is not likely to happen until lower courts have examined and ruled on it. By then, too, the Supreme Court will presumably have decided Dobbs v. Jackson Women’s Health Organization.