Roe Must Go

Published Date: July 1, 2021 | Topics: Civil Rights and Liberties, Constitutional Issues, Politics and Current Affairs

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Lynn Fitch, the attorney general of Mississippi, faces the most consequential litigation decision of the last 50 years: whether to ask the Supreme Court to reverse Roe v. Wade, the 1973 case that created a right to elective abortion, striking down abortion prohibitions that had long been in place in the states.

She should do exactly that. Roe must go. It is morally and, more to the point for the Court, constitutionally indefensible—and has been from the moment it was handed down.

Moreover, the statute Attorney General Fitch is defending, her state’s law prohibiting elective abortion after 15 weeks of gestation, cannot logically be defended without asking the Court to overturn Roe and the most important case following upon it, Planned Parenthood v. Casey. That is so for the simple reason that the statute is flatly inconsistent with those decisions.

On top of that, of course, the attorney general professes to be a supporter of the pro-life cause, and Roe has long been the greatest obstacle to the advancement of that cause.

The pro-life movement is founded upon two premises. The first is moral: that every human being, born or unborn, possesses inherent and equal dignity and an inalienable right to life. The second is legal: that there is no constitutional right to elective abortion on any responsible reading of our national charter; that this “right” was unconstitutionally fabricated by the Supreme Court in what dissenting Justice Byron White, a John F. Kennedy appointee and a Democrat, denounced as an “act of raw judicial power”; and that Roe and later cases based on it must be overturned. Reversing Roe is the only path consistent with the rule of law and basic justice. 

So far, however, Attorney General Fitch has not clearly indicated that she will request that reversal in Dobbs v. Jackson Women’s Health Organization, the case in which the Supreme Court has agreed to decide the constitutionality of the Mississippi statute. In a Wall Street Journal op-ed about that case, she wrote that the Supreme Court “recognized a right to terminate pregnancy,” and qualified the point only by observing that the Court has also held that “the right is not absolute.” She also wrote that she would ask the Court “simply to affirm the right of the people to protect their legitimate interests and to provide clarity on how they may do so.” 

If this means that Attorney General Fitch accepts the existence of “a right to terminate pregnancy,” or even merely that she will not challenge this notion before the Court, then the cause of constitutionalism—and that of protecting innocent life—may suffer a catastrophic betrayal. That is because Dobbs presents the best opportunity in 47 years—and likely the best for another generation or more—to overturn Roe and Casey. But the Court is much less likely to take that step if Mississippi does not request it. (Mississippi’s petition asking the Court to hear its case did, in a crucial footnote, effectively reserve the right to make that request.) 

Asking for the reversal of Roe and Casey is not only good for constitutionalism and the cause of human dignity and human rights. It is the only path consistent with the attorney general’s primary ethical obligation as a lawyer to give her client—Mississippi—a chance to win this case. That is because the Mississippi law at issue prohibits some pre-viability abortions, which is clearly forbidden by Roe and Casey, as every judge of every stripe to have considered the question has held. 

So Attorney General Fitch must ask—in bold type in her brief, under its own Roman numeral heading—that the Court reverse Roe and Casey. Of course, she can and should also request, in the alternative, that the Court find a way to allow Mississippi’s law to go into effect even if it wishes to disturb those two precedents as little as possible. But first, this halfway approach would be much harder to pull off than almost everyone has assumed. And second, for reasons specific to this case, this approach would require the justices to double down on any narrower abortion “right” they left intact in Dobbs, making it harder for them to fully reverse Roe later on. (Both points were expertly explained by Sherif Girgis on the Volokh Conspiracy blog, in what will be remembered as the most rigorous and prescient analysis of the Court’s options in Dobbs.) So this alternative argument cannot replace the message that must be loud and clear: Roe and Casey must go.  

The conservative legal movement—the movement for faithful interpretation of the Constitution—must demand this of Attorney General Fitch. The national pro-life movement must demand it. The pro-life people of Mississippi must demand it. Other officials in Mississippi must demand it. Her brief is due on July 22. All will read it closely. And if Attorney General Fitch waters down her arguments to the Court, contrary to her duties to the state, to the pro-life voters who elected her, and to the causes of justice and the rule of law, there must be a severe political reckoning.

The pro-life cause—and the cause of constitutionalism—has often been sold out by public officials. We must not allow it to be sold out this time. Enough is enough.

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