By David Bjornstrom — On December 1, the Supreme Court will begin hearing arguments in Dobbs vs. Jackson Women’s Health, which will necessitate a revisiting of some of the Court’s most notorious abortion decisions. The stakes are high, with more than 170 legal briefs already filed by both pro-life and pro-abortion groups. So what exactly is each side arguing in the Dobbs case?
Roe v. Wade, decided in 1973, and Planned Parenthood v. Casey in 1992, allowed unrestricted abortion of babies considered not yet “viable,” which medical technology currently places at around 24 weeks gestation. In those cases, the Court stretched the wording of the Constitution almost beyond recognition to create a so-called “right” to abortion, based on an implied right to “privacy” and a warped interpretation of “liberty” under the Fourteenth Amendment. Since then, these cases have been extended to allow late-term abortions long after viability.
What exactly is on trial?
This so-called “right” to abortion is on trial in Dobbs. The state of Mississippi is asking the Court to uphold its law that bans most abortions once the baby reaches 15 weeks, arguing that each state should be allowed to determine its own limits on abortion. Pro-life briefs filed by a number of amici curiae (friends of the Court) ask the Court to go all the way in recognizing the pre-born baby’s legal right to life as a human person from the time of conception.
What are the arguments for each side?
Groups supporting the pro-life side include women injured by abortions; some state governments; medical, religious, and civil rights organizations; and several pro-life organizations. Those groups supporting abortion include some government organizations, purported scholars and legal advocates, the ACLU, atheist and LGBTQ organizations, and various women’s organizations that promote abortion as a fundamental right.
Pro-life briefs point out that the right to abortion is pure judicial fabrication, stated nowhere in the Constitution, and that abortion is not a victimless act. Modern science has disproved the essential underpinning of Roe and Casey by showing the baby’s humanity from the time of conception. By contrast, the promoters of abortion refuse to recognize the pre-born baby as a human with basic human rights, focusing instead on the desires of women who think they need abortion to achieve personal, social, and economic freedom.
Despite the sheer number of legal briefs filed in the Dobbs case, there are six main arguments.
Does the Court’s “viability” standard make sense?
Pro-life briefs in Dobbs argue that modern science has shown that the “viability” standard in Roe and Casey is irrelevant to the pre-born baby’s humanity. The baby is a genetically unique human being with its own DNA separate from its mother at the time of conception. In vitro fertilization proves that viability outside the mother’s womb can occur at the embryonic stage of development. Ironically, this was predicted by Supreme Court Justice Sandra Day O’Connor in 1983 when she famously said that ongoing medical advances put Roe v. Wade “on a collision course with itself.”
If the Court agrees to drop the viability standard, the question becomes what to replace it with. Some of the briefs ask the Court to let each state decide abortion law for itself, but others tell the Court that the only correct answer is to recognize the pre-born as human persons with a Constitutional right to life.
One of the most significant briefs in the Dobbs case reminds the Court of its 1968 decision in Levy v. Louisiana, in which they defined legal persons as those who are “humans, live, and have their being.” Pre-born humans meet this definition of “person” from the moment of conception, guaranteeing them the Fourteenth Amendment right to life and equal protection under the law.
Pro-abortion briefs in the Dobbs case, on the other hand, insist that abortion should be allowed for pre-viable babies because the woman’s right of self-determination outweighs any rights the pre-viable fetus may have as merely a “potential human life.” These briefs, however, make little effort to justify calling the baby a mere “potential human life” or to honestly consider the pre-born baby’s interest in staying alive. Nor do they propose much justification for the viability dividing line, except that Roe and Casey said so.
Does the unborn baby have a right to continue living even if that conflicts with its mother’s life goals?
Pro-life briefs in Dobbs stress the simple fact that abortion is not a victimless act. Abortion kills an unborn child and the mother’s personal desires cannot justify that.
The pro-abortion briefs, by contrast, skip over the child’s humanity, insisting that legal abortion preserves a woman’s “bodily integrity” (never mind the child’s body) and allows her to achieve her life goals. However, these briefs fail to explain how a woman’s personal goals and desires can justify killing an innocent human being. Would these people try to defend pre-Civil War slavery just because it helped slave owners achieve their life goals?
Can the Court ignore or overrule Roe and Casey after so many years have passed?
While the Supreme Court generally follows prior case law as legal “precedent,” cases like Roe and Casey that are plainly wrong and truly egregious are not binding, especially when those cases have never been truly accepted by major portions of the country. As stated by Justice Gorsuch in Ramos v. Louisiana last year, “the Court must not perpetuate something we all know to be wrong only because we fear the consequences of being right.”
Pro-abortion briefs, by contrast, argue that abortion has been legal in the US for so long now and is so ingrained in modern society, that it is simply too late to change. But despite the decades that have passed, it is now time for Roe and Casey to be relegated to the dustbin of history alongside some of the Court’s other atrocious past decisions that are thankfully behind us:
- The Dredd Scott case in 1857, which declared that black slaves were “beings of an inferior order, and altogether unfit . . . and so far inferior that they had no rights which the white man was bound to respect.”
- Plessy v. Ferguson in 1896, which upheld a state law enforcing “separate but equal” public accommodations for black and white citizens.
- Buck v. Bell in 1927, which upheld a Virginia eugenics law that allowed the forcible sterilization of persons diagnosed as “feeble minded.”
- Korematsu v. United States in 1944, which upheld a military order after Japan’s attack on Pearl Harbor that confined Japanese-Americans in internment camps.
What about equal rights?
Abortion advocates argue that legal abortion is necessary to give women equal rights because men do not get pregnant. This was a legal theory promoted without success by the late Justice Ruth Bader Ginsburg who, incidentally, admitted that Roe was legally flawed. But if the pre-born child is human (and she is), this equality argument is nonsense. We do not allow people in a civilized society to achieve equality by killing an innocent human victim.
Some of the pro-abortion briefs insist that if abortions are harder to get, less-privileged women won’t have equal access to them. Why would they rally for less-privileged women to be able to kill their children? A brief filed by a group of religious and civil rights leaders, including Dr. Alveda King, niece of Martin Luther King, Jr., points out that modern abortion advocacy grew out of and remains rooted in race-based eugenics, which sought to eliminate what some people viewed as “less desirable” people. This brief cites recent data from the Centers for Disease Control indicating that Black women accounted for 33.6 percent of all reported abortions in 2018, even though they made up just 13 percent of women in the US.
What about the health and safety of women?
Pro-abortion briefs claim that abortion should remain legal because women will obtain illegal abortions and hurt themselves. But if abortion involves the wrongful death of an innocent human being, the law certainly has no duty to make it a “safe” practice. And if the goal is safety, why are so many abortion advocates now pushing for “at home” abortions via the abortion pill? The recent Women’s March in Washington, DC, specifically asked people to refrain from using coat hanger imagery because they do not want to promote “the old idea that self-abortions are dangerous.”
A brief from a group of pro-abortion medical organizations suggests that abortion restrictions endanger pregnant women’s health and interfere with the doctor-patient relationship. However, this is easily countered by briefs from pro-life medical organizations, which detail the health risks from abortion, both physical and psychological. As for the doctor-patient relationship, the job of an obstetrician is to care for two patients—the pregnant woman and her pre-born child. Abortionists are the only so-called “doctors” who intentionally kill one of their patients at the behest of another.
Is religion involved or not?
Several pro-abortion briefs suggest that people who want to make abortion illegal are trying to force their religion on others. Although abortion is certainly a biblical issue, arguments for making abortion illegal again do not need to include religion at all—just ask a member of a secular pro-life group. Laws commonly prohibit wrongful acts like bank robbery and murder without basing arguments on religion.
Interestingly, one of the pro-abortion Dobbs briefs argues the opposite—that abortion must be allowed as an expression of religious freedom. For example, the Church of Satan openly argues that abortion is a religious ritual that its members have a right to participate in. Should we keep this so-called religious practice legal, even though it kills another person?
The pro-abortion arguments in Dobbs are weak from a legal standpoint, but it is impossible to predict what the Court will do. Each of the justices has their own personal leanings and bias, and they will be subject to enormous political pressure. The justices are supposed to follow the Constitution, but it is fairly likely that they will seek some compromise, continuing to chip away at Roe or leaving it to the individual states to make their own laws. Such partial solutions, of course, will never achieve any lasting resolution of such a fundamental issue of life—just as our country had no lasting peace when there were separate slave states and free states before the Civil War.
Whatever the Court decides, this battle for the lives of pre-born children will continue until the day they are universally recognized as human persons from the moment of conception.
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David Bjornstrom is a member of the US Supreme Court bar and a retired Santa Rosa, CA-based attorney with 38 years of experience specializing in business, estate, and tax law. He serves in various pro-life and elder-focused outreach ministries. David and his wife have six children, including two adopted from China, and 16 grandchildren.