NRL News

Two days until Supreme Court hears Dobbs v. Women’s Health Organization: Part One of Two

by | Nov 29, 2021

By Dave Andrusko

As a measure of what is at stake, Dobbs v. Women’s Health Organization “has attracted the third highest number of briefs in the court’s history,” according to Jonathan Turley. At issue is Mississippi’s Gestational Age Act which protects unborn babies after the 15th week of pregnancy. 

Today we’re offering two more takes on HB 1510.

We’ve focused on Mississippi Attorney General Lynn Fitch before both because she is the first line of defense and because her amicus briefs cover a lot of territory in an engaging and thoughtful manner.

Today, however, rather that examining her insights from her legal briefs, we’ll offer some highlights from an op-ed she wrote over the weekend for the Washington Post. Let’s examine five:

1. “On Dec. 1, we will make the case to the Supreme Court for overturning Roe v. Wade and returning decision-making about abortion policy to the people. We recognize the magnitude of what we are asking. But the reason it represents such a monumental change is because almost 49 years ago the court put political intuition above sound legal reasoning and reached a conclusion in Roe utterly unsupported by the Constitution or the court’s own jurisprudence. It is time to correct that mistake.”

Point #1 made in simple, straightforward terms. As we’ll talk about further in Part ll, Roe (and its companion case, Doe v. Bolton) cobbled together a hodgepodge of bad history, “penumbras” and “emanations,” and result-driven jurisprudence to reach a predetermined decision. It’s time to correct that mistake.” Actually, it is way past time to unshackle the American people and let their voices be heard.

#2.“ In deciding Roe v. Wade, the court, almost paternalistically, worried about the ‘distressful life and future’ of a woman facing an unplanned pregnancy. But in the intervening years, it has become easier for women to reach the very pinnacle of our success, economically and socially, fully independent of the right those seven male justices bestowed upon us.” It is almost impossible to exaggerate how different our culture is from the one Justice Blackmun imagined.

For example, as Nicole Ault observed [], “Here’s a measure of how far American women have progressed since 1973, when the U.S. Supreme Court decided Roe v. Wade: Then, no woman had ever been elected attorney general of a U.S. state, and none would be for another dozen years. Now, Mississippi’s attorney general is defending the constitutionality of her state’s law banning most abortions after 15 weeks.”

240 female scholars, professionals, and pro-life feminist groups made this point with vigor and clarity: “Ironically, under the guise of women’s rights, equality arguments for abortion suggest that females are intrinsically blighted by their reproductive capacity to bear children. These arguments tend, unwittingly perhaps, to promote the male childless norm in educational and employment settings.”

#3. “The court in Roe pitted women against our children, and woman against woman. It came to a political conclusion through a nonpolitical process and threw our society into a chaos that has plagued U.S. politics and jurisprudence ever since.” This cannot be emphasized enough. Abortion pits women against their unborn children in the most dramatic way possible—death over life—and unsettled the political process in a way that remains as divided as it was nearly 49 years ago.

#4. “In Roe, the court turned actual policymaking in state legislatures into an almost academic exercise, blocking the people and their elected officials from having the truly difficult debate about how we assert the basic human dignity of women and their children in our laws.” Fitch never, ever suggests that the issues at stake in the abortion battle are easy or simple. She does say, however, that we are better as a people than choosing death as a “solution,” and places her faith, not in unelected judges, but in the 50 state legislatures. And

#5. “I have great faith in the American people and our elected leaders, so I am certain that when the court overturns Roe, an honest debate over true policy will ensue. It will be messy and it will be hard, and that debate may play out differently and reach different conclusions from state to state. But that is the role the Constitution gave to us, to the people, and that is the role the court needs to return to us now.”

When Roe is overturned, the abortion debate will return to the states. Pro-lifers are confident we will prevail. Will it be easy? Of course not. “But that is the role the Constitution gave to us, to the people, and that is the role the court needs to return to us now.”

Categories: Dobbs