WASHINGTON Ƶ The United States is one of just seven out of 198 countries that allow elective abortions after 20 weeks of pregnancy.
Two of the others are China and North Korea. By contrast, 39 out of 42 of European nations Ƶ including France and Germany Ƶ bar elective abortions at 15 weeks or less (though with broader exceptions than typically seen in the United States). Not one permits them through all nine months of pregnancy, as do seven states and the District of Columbia.
The state of Mississippi has passed a law that effectively declares: We prefer to keep company with France and Germany than China and North Korea.
Now, the Supreme Court will decide whether Mississippi can restrict abortion to 15 weeks, as most civilized nations do. To do so, the justices must overturn Roe v. Wade and Casey v. Planned Parenthood Ƶ which created a right to abortion that exists nowhere in our Constitution Ƶ and return the question to the states, where it belongs.
Remarkably, in WednesdayƵs oral arguments, none of the liberal justices made any substantive arguments to defend Roe or Casey as rightly decided. Instead, they argued politics and process.
First, they said overturning Roe and Casey would Ƶ in Justice Sonia SotomayorƵs words Ƶ create a political ƵstenchƵ that the court might not Ƶsurvive.Ƶ But the job of a Supreme Court justice is to decide cases based solely on the law and the Constitution, not politics. Doing otherwise is precisely what damages its credibility.
Second, they argued process Ƶ that the principle of stare decisis (Latin for Ƶto stand by things decidedƵ) requires the court not to reverse its previous decisions Roe and Casey.
But, as John Yoo, professor of law at the University of California at Berkeley, explains, stare decisis is usually used to Ƶdefend decisions you know to be wrong Ƶ because if they werenƵt wrong, you wouldnƵt need stare decisis.Ƶ
Indeed, Justice Brett M. Kavanaugh pointed out that many of the courtƵs most consequential decisions Ƶ celebrated by liberals Ƶ overruled precedent in cases that were wrongly decided. ƵBrown v. Board outlawed separate but equal,Ƶ he said, ƵBaker v. Carr, which set the stage for one person, one vote. ... Miranda v. Arizona, which required police to give warnings ... about the right to remain silent. ... Lawrence v. Texas, which said that the state may not prohibit same-sex conduct. ... Giddeon v. Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell, which recognized a constitutional right to same-sex marriage.Ƶ Had the court adhered to stare decisis in those cases, Ƶthe country would be a much different place.Ƶ
So, what will the court do? Based on WednesdayƵs arguments, it seems unimaginable that the court will declare MississippiƵs law unconstitutional.
The second option is that sought by Justice Clarence Thomas Ƶ and likely supported by Justices Alito, Neil M. Gorsuch, and Amy Coney Barrett: The court strikes down Roe and Casey, declaring that these decisions, like Plessy before it, are so egregiously wrong that they must be overturned.
A third option Ƶ which Chief Justice John G. Roberts Jr., the courtƵs champion of incrementalism, seemed to be suggesting Ƶ is to find some Solomonic middle ground in which the court upholds MississippiƵs law without overturning Roe and Casey.
The problem for Roberts is that Casey declared that before viability, states cannot prohibit abortion or create an Ƶundue burdenƵ for accessing it through regulations Ƶ and no one argues that an unborn child is viable at 15 weeks.
That did not stop Roberts from floating a reconception of Casey that erased the viability line. ƵViability, it seems to me, doesnƵt have anything to do with choice,Ƶ he said. ƵIf it really is an issue about choice, why is 15 weeks not enough time?Ƶ
But if the court arbitrarily sets the line at 15 weeks, states will soon return to ask it to rule whether 12 weeks, or 10, is Ƶenough timeƵ Ƶ forcing the justices to continually revisit the issue.
The good news is: With BarrettƵs appointment, Roberts is no longer the deciding swing vote.
To prevail, he needs to persuade another conservative, such as Kavanaugh, to go along.
And in oral arguments, it did not look like Kavanaugh was biting. ƵIf we think that the prior precedents are seriously wrong,Ƶ Kavanaugh asked, Ƶwhy, then, doesnƵt the history of this courtƵs practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality?Ƶ
It is. And the decision is likely in KavanaughƵs hands.
Marc A. Thiessen is a syndicated columnist. He is on Twitter,
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