ACLJ Analysis: Supreme Court Reconsiders Roe v. Wade

Today, the largest abortion case since 1992 was argued at the Supreme Court. Dobbs v. Jackson Women’s Health Organization is the case we’ve been waiting for to potentially overturn Roe v. Wade. This case addressed the Mississippi law that banned abortion after 15 weeks.

It’s time for the Supreme Court to reevaluate the decisions in Roe v. Wade and Planned Parenthood v. Casey as advancements in medical science and technology have made it clear that the judicially created point of viability should no longer be the standard. We’ve already filed three briefs in this case and we have a team of legal experts analyzing the case.

So, will the Supreme Court overturn Roe v. Wade?

The Chief Justice of the Supreme Court holds a large impact on these types of controversial cases. Chief Justice John Roberts brought up a key issue, comparing other countries’ abortion bans to the United States during questioning:

I’d like to focus on the 15-week ban because that is not a dramatic departure from viability. It is the standard that the vast majority of other countries have. When you get to the viability standard, we share that standard with the People’s Republic of China and North Korea. 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.

To which, the abortion industry’s litigator Julie Rikelman responded:

I think there are two questions there, Your Honor, if I may. First, that is not correct about international law. In fact, the majority of countries that permit legal access to abortion allow access right up until viability, even if they have nominal lines earlier. So, for example, Canada, Great Britain, and most of Europe allows access to abortion right up until viability.

The Chief Justice is correct; the abortion industry is flat wrong. And this is exactly the point we made in our amicus brief to the Supreme Court (one of three we filed) on behalf of the European Centre for Law and Justice (ECLJ). The seven countries that allow elective abortions after 20 weeks are Canada, China, the Netherlands, North Korea, Singapore, United States, and Vietnam. ACLJ Senior Counsel CeCe Heil pointed out the differences in the countries’ abortion standards:

We are one of seven countries that allow abortions after 20 weeks. So, in Europe, the European Court of Human Rights actually recognizes the life of the baby as a competing interest. They actually require that you balance that. You balance the baby’s life with the choices of the mother. And we don’t do that in the United States. In fact, they were arguing basically the rights of the mother just absolutely trump the rights of the baby.

In another development from the oral arguments today, several of the more senior Supreme Court Justices have criticized the new Justices, especially on this issue. Justice Sonia Sotomayor expressed her concern with new Justices overturning Roe v. Wade:

Fifteen justices over 50 years have . . . or I should say 30 since Casey, have reaffirmed that basic viability line. Four have said no – two of the members of this Court. But 15 Justices have said yes, of varying political backgrounds. Now, the sponsors of this bill, the House bill, in Mississippi, said we are doing it because we have new Justices.

We do have new Justices, new technology, and more information to accurately address the shortcomings of the decision in Roe v. Wade. Ultimately, Mississippi is not advocating for any other state to adopt its 15-week abortion ban. This case doesn’t end abortion everywhere, but it does give that power back to the states to determine.

Justice Brett Kavanaugh summed up what is being challenged by Mississippi here:

To be clear, you are not arguing that the Court somehow has the authority to itself prohibit abortion or that this Court has the authority to order the states to prohibit abortion, as I understand it, correct? And as I understand that you are arguing the Constitution is silent, and therefore, neutral on the question of abortion? In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion, but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process? Is that accurate?

To which the Solicitor General of Mississippi, Scott Stewart, responded:

We’re saying it is left to the people, Your Honor.

As it should be left to the people. We will continue to monitor this case and provide you with more legal analysis as we hope the Justices will stand up for the unborn and overturn Roe v. Wade once and for all.

Today’s full Sekulow broadcast is complete with even more analysis of the oral arguments at the Supreme Court in Dobbs v. Jackson Women’s Health Organization.

Watch the full broadcast below.

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