Pro-life advocates gladly welcomed the U.S. Supreme Court’s announcement May 17 it would rule on the constitutionality of Mississippi’s ban on abortions of unborn children whose gestational age is more than 15 weeks.
The case, Dobbs v. Jackson Women’s Health Organization, offers the high court the opportunity next term to rein in a legal regime inaugurated in 1973 that has made the U.S. one of the most permissive countries in the world regarding abortion rights. Mississippi’s 2018 Gestational Age Act is one of many state laws enacted in recent years that establish prohibitions on abortion at certain stages of pregnancy and offer challenges to the Roe v. Wade decision that legalized the procedure nationwide.
The Supreme Court’s next term begins in October, and it is expected to issue an opinion in the case before it adjourns in the summer of 2022. In their order, the justices said they would limit their ruling to whether, as the state said in its appeal to the court, “all pre-viability prohibitions on elective abortions are unconstitutional.” Viability for an unborn child, or the ability to survive outside the womb, is typically considered to be several weeks after the limit set by Mississippi’s law.
The White House signaled President Joe Biden’s continued support for the Roe ruling after the high court’s order in the Mississippi case was announced. Press Secretary Jen Psaki told reporters Biden “is committed to codifying Roe regardless of … the outcome of this case.”
Elizabeth Graham of the Southern Baptist Ethics & Religious Liberty Commission (ERLC) said she is glad for the Supreme Court’s order because this “could be a generationally significant case for the future of abortion in America.”
“All Americans of goodwill want the state to protect their neighbors from harm, and yet, just as Jesus told us, we will argue among ourselves about who really counts as our neighbor,” said Graham, the ERLC’s vice president of operations and life initiatives.
“The question our nation must wrestle with is whether or not a child in the womb is, indeed, a preborn child and, therefore, our neighbor. As Christians, knowing the answer is not a reason to feel moral superiority, but to lament the abortion industry’s legal lies and to work to undo them. This case could be instrumental toward that end.”
Kenny Digby, executive director-treasurer of the Mississippi Christian Action Commission, said the entity is “thrilled and grateful” the Supreme Court has accepted the case.
“Now, would we like to see Roe v. Wade overturned? Absolutely, because we believe life begins at conception,” Digby said in a phone interview.
Regarding the 15-week ban, however, he said, “[I]n the world of politics, it’s not all or nothing. And our goal and our view is whatever means less abortion instead of more abortion, that’s where we are.”
The Mississippi law demonstrates the clash between the Roe opinion and the court’s recognition that states may regulate abortion, Alliance Defending Freedom (ADF) said.
ADF Senior Counsel John Bursch said “amazing progress in scientific research and medical technology” has made the idea of viability “an ever-moving target as younger children have survived and thrived after preterm birth. But ‘viability’ has never been a legitimate way to determine a developing infant’s dignity or to decide anybody’s legal existence.”
Abortion-rights advocates raised warnings about the threat to Roe.
The Supreme Court order “is an ominous sign and an alarming reminder that the threat to the legal right to abortion is imminent and real,” said Christian LoBue, chief campaigns and advocacy officer for NARAL Pro-choice America. “If Roe v. Wade were to fall as a result of this case, states across the country are poised to ban abortion.”
The Roe ruling struck down abortion restrictions in all states and, combined with the Doe v. Bolton companion decision, had the effect of legalizing abortion throughout pregnancy for any reason. If Roe were reversed, states would once again decide abortion policy.
Lower courts struck down Mississippi’s 15-week ban. Based on Supreme Court precedent, a federal judge ruled in 2018 the law is unconstitutional because it prohibits pre-viability abortions. The Fifth Circuit Court of Appeals in New Orleans affirmed the ruling the following year.
The confirmation during the Trump administration of three justices considered to be conservative has given pro-life advocates hope the high court is ready to use a state law as the vehicle to overturn Roe. Some state legislatures with pro-life majorities have passed prohibitions that take effect even earlier in pregnancy than that enacted by Mississippi.
Alabama and Arkansas approved bans in 2019 and 2021, respectively, without a starting point in pregnancy. At least 10 states have enacted laws that prohibit abortion after a fetal heartbeat can be detected, which could occur as early as six weeks into pregnancy.
The states are on pace to set a record in 2021 for the most pro-life laws enacted in a year. Through the first four months of 2021, a total of 13 states placed into law 61 abortion restrictions, including eight bans on the procedure, according to a report issued April 30 by the Guttmacher Institute.
The Supreme Court, which had been considering since September whether to rule on Mississippi’s 15-week ban, declined to consider two other questions proposed by the state in its appeal. Those issues involved whether the law should be analyzed based on the court’s 1992 standard of an “undue burden” to the woman or its 2016 standard balancing benefits and burdens. The high court affirmed Roe in its 1992 Planned Parenthood v. Casey opinion but also upheld some state restrictions on abortion.
In urging the high court to rule on its law, Mississippi said it has an interest in protecting a mother, whose risk of death “from abortion at 16 to 20 weeks’ gestation is 35 times more likely than at eight weeks, and the relative risk of mortality increases by 38% for each additional week at higher gestations.” The state also expressed concern, based on scientific evidence, about the possibility of the unborn child experiencing a “conscious awareness of pain.”
Mississippi’s ban permits an exception for threats to the life or “substantial and irreversible impairment of a major bodily function” of the mother. It also allows an exception for a “severe fetal abnormality” that “is incompatible with life outside the womb.”
Abortion doctors often use a technique known as dismemberment or “dilation and extraction” abortion from about 14 weeks of pregnancy into the third trimester, according to the National Right to Life Committee. In the method, a doctor uses instruments such as forceps, tongs, clamps or scissors to cut off or rip off parts of an unborn baby or crush the child’s body.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press.)
