(Article by republished from WesternJournal.com)
In Dobbs v. Jackson Women’s Health Organization, the justices are considering whether the state’s Gestational Age Act violates the U.S. Constitution as interpreted in the seminal 1973 case Roe v. Wade.
The Supreme Court held in both Roe and Planned Parenthood v. Casey (1992) that the viability of the unborn child outside the womb is a “critical fact” states can weigh in establishing abortion law.
Babies are considered viable during the third trimester of the pregnancy, 24 weeks or later.
During Wednesday’s oral arguments, Roberts noted that viability is a pretty low and arbitrary standard that the court had created in the Roe decision.
“When you get to the viability standard, we share that standard with the People’s Republic of China and North Korea,” he said.
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“And I don’t think you have to be in favor of looking to international law to set our constitutional standards to be concerned if those are your … share that particular time period,” he added.
The observation was simple, but it savaged the pro-abortion argument. And it made Roberts, so often the villain to conservatives, a hero — at least on Wednesday.
The Charlotte Lozier Institute, a pro-life nonprofit group, determined in 2014 that the U.S. is one of only seven countries in the world that allow abortions after 20 weeks, sadly placing us right alongside nations that have little regard for human life, such as China and North Korea.
Roberts is right to highlight that’s a pretty sad place to be.
Dr. Donna Harrison — a board-certified obstetrician-gynecologist and the CEO of the American Association of Pro-Life Obstetricians and Gynecologists — argued in a Nov. 9 piece for The Daily Signal that the Mississippi law rests on solid ground in terms of its stated purpose of protecting the health of the mother.
The physician pointed out that the U.S. is behind many European countries — including France, Italy, Germany, Spain, Norway, Switzerland and Belgium — that place gestational limits on abortions.
In addition to Roberts, the questions asked Wednesday by Justices Brett Kavanaugh, Clarence Thomas, Neil Gorsuch, Samuel Alito, and Amy Coney Barrett all suggested they’re of a mind to uphold Mississippi’s law, too.
Kavanaugh pointed out that the court has been willing to overrule many precedents in the past, implying that Roe could be the next to go.
“You think about some of the most important cases, the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent,” Kavanaugh said.
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He rattled off examples, including Brown v. Board of Education (1954), Miranda v. Arizona (1966), and Lawrence v. Texas (2003).
Thomas went even more to the heart of the matter, asking, where the right to an abortion is even found in the Constitution.
“If we were talking about the Second Amendment, I know exactly what we’re talking about. If we’re talking about the Fourth Amendment, I know what we’re talking about. Because it’s written, it’s there. What specifically is the right here that we’re talking about?” he asked Solicitor General Elizabeth Prelogar, who represents the Biden administration in its opposition to the Mississippi law.
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In 1992, Thomas joined then-Chief Justice William Rehnquist’s dissenting opinion to the court’s decision in Planned Parenthood v. Casey, writing that, “We believe that Roe was wrongly decided, and that it can and should be overruled …”
With Roberts perhaps joining the five conservative justices on the court now, the “right” to an abortion as articulated in Roe may be about to go down in flames.
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