The U.S. Supreme Court’s oral arguments in December left pro-life advocates hopeful that the justices are poised to uphold a state ban on abortion after 15 weeks’ gestation and possibly to overturn long-standing decisions in support of legalized abortion nationwide.
During a nearly two-hour session, conservative justices questioned the high court’s previous rulings that prohibit bans on abortion before an unborn child is viable in their consideration of Mississippi’s 2018 Gestational Age Act. The high court also pondered at length if it would be appropriate to reverse its own precedent of almost 50 years that struck down all state restrictions on abortion.
The Supreme Court had limited its consideration of the law to whether “all pre-viability prohibitions on elective abortions are unconstitutional.” Viability for an unborn child, or the ability to survive outside the womb, is typically considered to be several weeks after the 15-week limit set by Mississippi’s law.
Mississippi, however, had also asked the high court to overturn the Roe v. Wade opinion of 1973 and the Planned Parenthood v. Casey ruling of 1992, decisions that prohibit states from banning abortions before an unborn child is viable. The Roe decision legalized abortion throughout the country, while Casey affirmed Roe but permitted some state regulation of the procedure.
The questions and comments from the conservative wing of the court suggested the justices’ opinion — which is expected to be issued by next summer — might maintain Mississippi’s ban and undermine Roe without overturning it explicitly or actually reverse Roe and Casey, thereby returning abortion policy to the states.
Pro-life leaders expressed optimism afterward.
While Brent Leatherwood, acting president of the Southern Baptist Ethics & Religious Liberty Commission, acknowledged it is difficult to forecast the court’s ruling based on the oral arguments, he said in an ERLC news release, “After listening to today’s proceedings, I’m left asking a simple question: What good is precedent if it is bad? At multiple points, whether it was, for example, the faulty reasoning of Justice Harry Blackmun in his Roe opinion or the irrelevance of the viability standard, it should be abundantly clear that the precedent in the area of abortion is completely unmoored from the Constitution itself.
“Furthermore, it completely disregards the individual whose rights are most affected: the preborn child,” he said. “That cannot continue. Denying the dignity of our most vulnerable neighbors should not be a hallmark of American jurisprudence.” Leatherwood and others from the ERLC were in Washington during the arguments.
In friend-of-the-court briefs, the ERLC and some other pro-life organizations urged the Supreme Court not only to uphold the state ban but also to reverse Roe and Casey.
If Roe is overturned, 26 states are either certain or likely to prohibit abortion, according to an Oct. 28 analysis by the Guttmacher Institute, a research and policy organization that supports abortion rights.
The United States has one of the most permissive abortion policies in the world. A study released in July by the pro-life Charlotte Lozier Institute showed 47 of 50 European nations ban elective abortions or restrict them to 15 weeks or earlier. The United States reportedly is one of only six countries, including China and North Korea, that permit elective abortions after 20 weeks’ gestation.
— Tom Strode is Washington bureau chief for Baptist Press.