Southern Baptists and other pro-life advocates greeted with hopefulness the news that a date has been set for arguments before the U.S. Supreme Court in the most significant abortion case in nearly three decades.
The high court announced Sept. 20 that oral arguments are scheduled for Dec. 1 in Dobbs v. Jackson Women’s Health Organization, which involves Mississippi’s 2018 Gestational Age Act. The law, which has been invalidated by lower courts, prohibits abortions of unborn children whose gestational age is more than 15 weeks.
The justices have said they will limit their ruling to whether, as the state told the court, “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 limit set by Mississippi’s law.
The high court’s major opinions that have controlled abortion law – Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992 – prohibit states from banning abortions before an unborn child is viable. The Roe decision legalized abortion nationwide, while Casey affirmed Roe but permitted some state regulation of the procedure.
An opinion in support of the Mississippi 15-week ban could potentially overturn both Roe and Casey explicitly or severely undermine those decisions. The ruling is expected to be issued before the high court adjourns next summer.
The Southern Baptist Ethics & Religious Commission (ERLC) and other pro-life organizations have joined Mississippi in urging the high court not only to uphold the state ban but reverse Roe and Casey.
“We are approaching a critical moment in our nation’s history [in a case that] could potentially end the legal precedents in Roe and Casey,” said Chelsea Sobolik, the ERLC’s director of public policy.
“Scripture is clear that all lives have innate dignity and worth and ought to be fully protected by law,” she said in written comments. “The Dobbs case provides an opportunity for the highest court in our nation to come to that same conclusion and affirm the fundamental right to life for all human beings, beginning at conception.”
Kenny Digby, executive director-treasurer of the Mississippi Christian Action Commission (CAC), said the state ban is a “well-, well-written law, and basically we are tickled pink” the high court has scheduled oral arguments.
“We are thrilled with any legislation that means [fewer] abortions than more abortions, but man, to have this actually before the court in oral arguments, that’s a huge step in and of itself,” he said in a phone interview.
“I think there’s been a tightrope act for a long time. … It’s like [the justices and federal appeals courts] agree legally that restrictions at the state level are viable for any number of reasons, but they haven’t been willing to actually look at the root cause of all of this, and that’s a poorly made decision [in Roe].”
The Mississippi CAC is an agency of the Mississippi Baptist Convention.
Denise Harle, senior counsel for Alliance Defending Freedom, said in an email interview, “It is difficult to speculate what the court will do, but we do know this: The framework under Roe and Casey is not working – that’s one of the reasons we see so many laws and subsequent lawsuits.
“The court’s decisions in those cases created decades of confusion and legal chaos. The court absolutely should recognize that life is a human right and protect the unborn, as Mississippi has aimed to do here.”
In a July brief for the state, Lynn Fitch, Mississippi’s first female attorney general, told the justices they should overturn the Roe and Casey decisions because they are “egregiously wrong,” “hopelessly unworkable” and “have inflicted significant damage.”
Roe “shackles states to a view of facts that is decades old, such that while science, medicine, technology and culture have all rapidly progressed since 1973, duly enacted laws on abortion are unable to keep up,” Fitch said in a written statement Monday. “With Dobbs, the Supreme Court can return decision-making about abortion policy to the elected leaders and allow the people to empower women and promote life.”
Abortion-rights advocates filed more than 50 friend-of-the-court briefs Monday urging the justices to strike down the Mississippi ban. Among those submitting briefs were the American Medical Association, American Bar Association, more than 6,600 women who have had abortions and 500-plus current or former professional, college and high school athletes and coaches, as well as organizations.
On behalf of the Biden administration, Acting Solicitor General Brian Fletcher said in a friend-of-the-court brief filed Monday the long-standing precedents of Roe and Casey require the high court to maintain the Roe decision’s “central holding,” which he said “remains clear and workable.”
In the case, the Supreme Court has the chance to rein in a legal regime inaugurated nearly 50 years ago that has made the United States one of the most permissive countries in the world regarding abortion rights. A study released in July by the pro-life Charlotte Lozier Institute showed 47 of 50 European nations do not permit elective abortions or restrict them to 15 weeks or earlier.
In July, the ERLC and five other religious organizations joined a friend-of-the-court brief filed by the U.S. Conference of Catholic Bishops that told the Supreme Court its rule in the Roe and Casey opinions that prohibited states from banning abortions before an unborn child is viable “is deeply flawed. These decisions, insofar as they impede the ability of states to prohibit abortion before viability, should be overruled.”
The brief said the U.S. Constitution “does not create a right to an abortion of an unborn child before viability or at any other stage of pregnancy. An asserted right to abortion has no basis in constitutional text or in American history and tradition.”
Mississippi’s ban permits an exception for threats to the life or “substantial and irreversible impairment of a major bodily function” of the mother. It also allows an exception for a “severe fetal abnormality” that “is incompatible with life outside the womb.”
The high court also announced Carson v. Makin, an important religious freedom case, will be argued Dec. 8. In the case, the ERLC joined in a friend-of-the-court brief filed Sept. 10 that asked the high court to invalidate a Maine tuition-assistance program that forbids the participation of schools that provide faith-based instruction.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press.)