After years of work and prayer, the walls of the abortion movement in the USA are starting to crumble. This will, God willing, have a flow on effect in Australia. Here is a legal analysis by ACL's Legal Counsel, Christopher Brohier.
On 1 December 2021 the US Supreme Court (SCOTUS), heard argument in the historic case of Dobbs v Jackson Women’s Health Organisation.
The case concerns the constitutionality of the Mississippi Gestational Age Act, which only permits abortions after 15 weeks (or 3 and a half months), if there is a medical emergency or because of severe foetal abnormality.
The lower federal courts had struck the law down as being contrary to Roe v Wade, the 1973 SCOTUS case, which found that there was a constitutional right to abortion on demand up to the age of viability. Mississippi sought leave to challenge the lower courts’ decisions in SCOTUS and that leave was granted. In US jurisprudence that is important. The full argument on the case was heard on 1 December 2021.
Mississippi’s argument was succinctly put by the Solicitor-General who said:
“Roe v Wade and Planned Parenthood v Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They've damaged the democratic process. They've poisoned the law. They've choked off compromise.
“For 50 years, they've kept this Court at the center of a political battle that it can never resolve. And 50 years on, they stand alone. Nowhere else does this Court recognize a right to end a human life.
“Consider this case: The Mississippi law here prohibits abortions after 15 weeks. The law includes robust exceptions for a woman's life and health. It leaves months to obtain an abortion. Yet, the courts below struck the law down. It didn't matter that the law apply -that the law applies when an unborn child is undeniably human, when risks to women surge, and when the common abortion procedure is brutal. The lower courts held that because the law prohibits abortions before viability, it is unconstitutional no matter what. Roe and Casey's core holding, according to those courts, is that the people can protect an unborn girl's life when she just barely can survive outside the womb but not any earlier when she needs a little more help. That is the world under Roe and Casey.
“That is not the world the Constitution promises. The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people. Roe and Casey have failed, but the people, if given the chance, will succeed.”
Mississippi directly challenged Roe. If the challenge succeeds, the power to regulate abortion passes to the people in the various states. If Mississippi succeeds, State legislatures may pass laws restricting or allowing abortion. State laws, in place before Roe, and never repealed, will be revived. Abortion law will be a matter for the people, not an inferred constitutional right.
The Guttmacher Institutes estimates that up to 26 states may either have reviving laws, or will pass laws, that restrict or ban abortion. The Institute considers that Florida, Indiana, Montana, Nebraska and Wyoming may impose near total bans on abortion. A Texas law, which bans abortion from 6 weeks if Roe is overturned, will be “triggered” into existence.
An amicus curiae (friend of the court) brief filed in Dobbs, estimates that about 120,000 babies’ lives will be saved if this occurs. That means 120,000 mums will not bear burden of abortion grief. Gary Franks, a three time African-American member of the House of Representatives for Connecticut, says in an op-ed piece published on 28 January 2022, that over 40% of babies who are aborted are black, while black or African-American people only make up 14% of the population of the USA. If Dobbs succeeds, it will the most significant result for black lives in the US and beyond.
Please join in prayer for the overruling of Roe.
Unlike our High Court, the justices in SCOTUS are openly grouped into conservative and liberal groups. The Chief Justice John Roberts is commonly viewed as a middle ground judge or a swing vote. Given the appointments made by President Trump, the Court is now weighted in favour of the conservatives 5 votes to 3, with the Chief Justice in the middle making up the 9th vote. Justice Stephen Breyer, one of the liberals has announced his intention to retire, and President Biden has announced that he will appoint a black woman to the Bench. The new judge is likely to be a liberal, so that will not change the constitution of the Court. If the Republicans gain control of the Senate in November’s mid-term elections, even that appointment may be blocked.
Many years ago I met a team of American lawyers from one of the pro-life legal movements who remarked how dispirited the pro-life movement was in Australia. That is changing. The recent events in the US should give us great encouragement. On 21 January 2022 hundreds of thousands of Americans attended the March for Life in the cold in Washington D.C. Our press did not report it, but you can get something of the excitement of the event from the links below.
But don’t just get excited. Join us and Love Adelaide in the Walk for Life in Adelaide on Saturday 12 February. You have nothing better to do on that day. Please get your tickets here: https://www.loveadelaide.org.au