One of the major U.S. political battles of the past 50 years has centered on the so-called “right to privacy” that the Supreme Court applied from its 1965 “Griswold v. Connecticut” decision onto the issue of murder in the form of abortion inside a woman’s body in the 1973 “Roe v Wade” decision.
The “Roe” ruling was nonsensical, could make many murder and murder-for-hire cases fall under the rubric of “privacy,” destroyed the Fourteenth Amendment requirement for equal protection by state laws, and wiped out state sovereignty over capital murder statutes.
Now, lawyers working for the government of Mississippi have filed their Supreme Court brief in support of state statute HB 1510, which passed in 2018 and bans (in most cases) abortions at 15 weeks from conception and beyond.
And in that brief, they call for overturning of Roe.
The Court announced in May that it would be hearing Dobbs v. Jackson Women’s Health Organization, which concerns Mississippi’s HB 1510 law banning abortions from being committed past 15 weeks for any reason other than physical medical emergencies or severe fetal abnormalities. After its enactment in 2019, the law was temporarily blocked, then declared unconstitutional by the Fifth Circuit Court of Appeals.
One of the keys in the Mississippi argument stems from the bad precedent of Roe and the subsequent “adjustment” the SCOTUS created to Roe’s blanket permission for abortion, an adjustment (allowing the states to create SOME limitations) that can be found in the 1992 cased called “Planned Parenthood v. Casey.”
’Roe based a right to abortion on decisions protecting aspects of privacy under the Due Process Clause,’ but ‘broke from prior cases by invoking a general ‘right of privacy’ unmoored from the Constitution,’ the brief notes. ‘Notably, Casey did not embrace Roe’s reasoning,’ but instead defended ‘Roe’s result—based on the liberty this Court has afforded to certain ‘personal decisions,’’ while similarly ‘failing to tie a right to abortion to anything in the Constitution.’
The Casey decision allowed states to create prohibitions of abortion once the fetus had been deemed “viable,” setting up a distinction between all lives and lives the state says are more capable of living on their own. Try finding a moral standard in that evil thinking.
And the Mississippi brief attacks that lack of consistency about life and the equal protection of all lives that is required by the Fourteenth Amendment if any state has statutes that punish the taking of human life.
’While crediting States with important interests, Roe and Casey impede States from advancing them,’ the brief notes. ‘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.’
The underlying philosophical point is this:
If, as Thomas Jefferson and many other Founding Era thinkers argued, the only compelling rationale for the existence of government is to protect life and to punish human-on-human predation (including murder and theft), then, by blocking states from making universalizable statutes that protect all people, both Roe and Casey stand against the “compelling state interest standard” applied to state governments for many statutes.
As Freiburger observes, the only SCOTUS Justices who have consistently shown standards that would overturn Roe are Clarence Thomas and Samuel Alito.
The other “conservatives” cannot be viewed as upholding federalism and the Constitution when it comes to abortion.
This case will be a big test of their standards.