Mississippi calls on Supreme Court to overrule Roe v. Wade and Casey

Next term, the Supreme Court will hear the case of Dobbs v. Jackson Women’s Health Organization. The issue is the constitutionality of Mississippi’s Gestational Age Act, which allows abortions after 15 weeks of gestational age only in medical emergencies or in instances of severe fetal abnormality.

Ed Whelan has reproduced the text of the introduction to Mississippi’s brief. Here are some excerpts:

Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition. Roe based a right to abortion on decisions protecting aspects of privacy under the Due Process Clause. 410 U.S. at 152-53. But Roe broke from prior cases by invoking a general “right of privacy” unmoored from the Constitution. Notably, Casey did not embrace Roe’s reasoning. See 505 U.S. at 846-53. And Casey’s defense of Roe’s result—based on the liberty this Court has afforded to certain “personal decisions,” id. at 851, 853—fails.

Casey 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.” Harris v. McRae, 448 U.S. 297, 325 (1980). So Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.

Roe and Casey have proven hopelessly unworkable. Heightened scrutiny of abortion restrictions has not promoted administrability or predictability. And heightened scrutiny of abortion laws can never serve those aims. Because the Constitution does not protect a right to abortion, it provides no guidance to courts on how to account for the interests in this context. . . .

While crediting States with important interests, Roe and Casey impede States from advancing them. Before viability the undue-burden standard has been understood to block a State from prohibiting abortion to assert those interests. And that standard forces a State to make an uphill climb even to adopt regulations advancing its interests. That is flawed. If a State’s interests are “compelling” enough after viability to support a prohibition, they are “equally compelling before” then. . . .

Roe and Casey have inflicted significant damage. Those cases “disserve[ ] principles of democratic self-governance,” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 547 (1985), by “plac[ing]” one of the most important, contested policy issues of our time largely “outside the arena of public debate and legislative action,” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Far from bringing peace to the controversy over abortion, Roe and Casey have made matters worse. See, e.g., Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 385-86 (1985) (“Heavy-handed judicial intervention [in Roe] was difficult to justify and appears to have provoked, not resolved, conflict.”). . .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.

The march of progress has left Roe and Casey behind. Those cases maintained that an unwanted pregnancy could doom women to “a distressful life and future,” Roe, 410 U.S. at 153, that abortion is a needed complement to contraception, Casey, 505 U.S. at 856, and that viability marked a sensible point for when state interests in unborn life become compelling, id. at 860. Factual developments undercut those assessments. Today, adoption is accessible and on a wide scale women attain both professional success and a rich family life, contraceptives are more available and effective, and scientific advances show that an unborn child has taken on the human form and features months before viability. States should be able to act on those developments. But Roe and Casey shackle States to a view of the facts that is decades out of date.

Reliance interests do not support retaining Roe and Casey. Almost all of this Court’s abortion cases have been fractured, with many Justices questioning Roe’s central premises. The people have long been “on notice” of “misgivings” on this Court about Roe and Casey. . .That abortion has remained a wholly unsettled policy issue also undermines reliance on Roe and Casey. . . .

Overruling Roe and Casey makes resolution of this case straightforward. The Mississippi law here prohibits abortions after 15 weeks’ gestation, with exceptions for medical emergency or severe fetal abnormality. That law rationally furthers valid interests in protecting unborn life, women’s health, and the medical profession’s integrity. It is therefore constitutional. If this Court does not overrule Roe and Casey’s heightened-scrutiny regime outright, it should at minimum hold that there is no pre-viability barrier to state prohibitions on abortion and uphold Mississippi’s law.

If all three of the Trump appointees vote to overrule Roe and Casey, Mississippi very likely will win. But my guess, for what it’s worth, is that this won’t happen, and that these decisions, though ungrounded in the Constitution, will remain the law of the land.