The Supreme Court’s Originalist Justices Should Allow Bad Abortion Law To Die By Its Own Hand
These same considerations that Casey relied upon nearly 30 years ago to justify affirming Roe v. Wade provide the precise basis to overturn Casey today.
Yesterday, the U.S. Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization—a case considering the constitutionality of Mississippi’s Gestational Age Act which, with some exceptions, bans abortions after 15 weeks. While in granting certiorari the Supreme Court limited the question on appeal to “whether all pre-viability prohibitions on elective abortions are unconstitutional,” Wednesday’s arguments focused more broadly on whether the high court should overrule Roe v. Wade and Casey v. Planned Parenthood.
Even then, however, the vast majority of the nearly two hours of argument considered not the fundamental question of whether there is a constitutional right to abortion; instead, the justices dueled over stare decisis and Casey’s reliance on that prudential principle to affirm Roe. The court’s focus during argument on stare decisis and Casey may cause concern that the justices will again refuse to right the wrong that began in 1973 with Roe v. Wade. It shouldn’t, though, because the originalist justices on the court can allow Casey to hoist itself upon its own petard.
The way forward here is clear, but likely unseen by the majority of Americans who wrongly believe Roe v. Wade remains the law of the land.