The Case To Overturn Roe?

Julaine Appling

2021 | Week of July 26 | Radio Transcript #1422

In May the US Supreme Court agreed to take up a case that some maintain could overturn the infamous 1973 Roe v. Wade decision that gave us abortion on demand in all fifty states.

The case comes out of Mississippi which has just one abortion facility. The state legislature passed a law in 2018 that banned abortions after fifteen weeks gestation. Jackson Women’s Health Organization brought the case against Thomas Dobbs, the State Health Officer of the Mississippi Department of Health.

This law, which was almost immediately blocked by the 5th US Circuit Court of Appeals, is very similar to Wisconsin’s law, which bans abortions after twenty weeks gestation. Governor Walker signed this into law in 2015, after rigorous debate over a bill that was informally referred to as the “pain-capable” bill. Supporters of the bill argued that science concurs that unborn babies feel pain at least as early as twenty-weeks and likely much earlier.

Three years later, Mississippi passes this bill that pushes the ban back by five weeks. While our twenty-week ban and that of other states have withstood challenges, this fifteen-week ban didn’t. The federal appeals court contended that the US Supreme Court held that states didn’t have the right to restrict abortion until after viability, generally considered to be about twenty-four weeks.

Mississippi wants the Supreme Court justices to reexamine that viability standard, arguing that this bright line prevents the state from protecting maternal health and potential life. That wording of “potential life” shows up in a number of court decisions when discussing viability—the ability of a child to survive outside the womb with or without medical intervention.

It’s important to clarify here that at the moment of conception we do not have “potential life”; rather, we have life with potential. At that moment an egg is fertilized, a new human life is formed—a human life that has potential—not potential to be more human, but potential to make humanity better, to create, to love, to share, to procreate, and so much more. This belief needs to undergird our prolife position.

That notwithstanding, this Mississippi case is asking the court to consider all the new science that indicates unborn babies sense pain well before twenty-four weeks and that medical advances certainly now make it possible for babies born many weeks prematurely to survive, not to mention that we now know a baby’s heartbeat can be detected by ultrasound at six weeks.

Since the high court agreed to hear this case and as we near oral arguments this fall, many pro-life organizations have submitted friend-of-the-court briefs in support of Mississippi’s position. We have joined on one of those briefs. Some of the briefs have urged the court to use this case to overturn Roe, arguing that Roe was wrongly and egregiously decided and rather than ending the abortion debate has actually heightened it and prolonged it.

Last week there was speculation whether Mississippi’s Republican Attorney General Lynn Fitch might not use this case to argue that Roe needs to be overturned. Last Thursday, that speculation was put to rest when AG Fitch filed a very strong brief arguing that the US Supreme Court needs to overturn the 47-year-old abortion-granting decision.

In her brief, AG Fitch directly challenges Roe’s assertion of a “right to privacy,” stating, “[A] right to abortion cannot be justified by a right of privacy or a right to make important personal decisions. Nowhere else in the law does a right of privacy or a right to make personal decisions provide a right to destroy a human life.”

AG Fitch argues that Mississippi has a legitimate interest in protecting mothers and their unborn children but that current abortion rulings prevent the state from enacting laws to assert their legitimate interest.

Needless to say, the prolife community is encouraged by the boldness of this attorney general who has directly asked the US Supreme Court to set aside stare decisis, which means that previous court decisions or precedent should determine the outcome in a case involving similar facts. In laymen’s terms, stare decisis means we just keep perpetuating bad court decisions.

Dobbs is obviously a monumental case. In the next year we will know how the supposedly conservative justices—Alito, Thomas, Kavanaugh, Gorsuch, Barrett and Roberts–really view Roe, abortion restrictions, and the role of the court. Will they hide behind precedent or boldly do the right thing? We urge you to pray for the right outcome in this significant case.

This is Julaine Appling for Wisconsin Family Council reminding you the prophet Hosea said, “My people are destroyed for lack of knowledge.”

Julaine Appling has taught on the junior high, high school, and college levels, and for five years was the administrator of a private school. In 1998 she was asked to become the Executive Director of Wisconsin Family Council, where her mission is to advance Judeo-Christian principles and values in Wisconsin by strengthening, preserving, and promoting marriage, family, life and liberty. In addition to regularly being interviewed for Wisconsin television, radio, and newspapers, she is the host of "Wisconsin Family Connection," aired weekly on almost 50 radio stations in Wisconsin including the VCY America radio network.

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