Pro-lifers warm up for Supreme Court showdown
Amicus briefs in a key Mississippi abortion case say Roe v. Wade is flawed and outdated
As this fall’s oral arguments approach in the most significant abortion case in decades, the Supreme Court justices have a mountain of legal briefs to sort through. The tally of friend-of-the-court, or amicus, briefs in Dobbs v. Jackson Women’s Health already stands at nearly 80, with each one about 40 pages long.
“Briefs play an important role in educating judges on potentially relevant technical matters, helping to make us not experts but educated lay persons and thereby helping to improve the quality of our decisions,” Justice Stephen Breyer explained once in a speech to the American Association for the Advancement of Sciences.
In Dobbs, the state of Mississippi is defending its law protecting babies from abortion after 15 weeks of gestation by directly asking the Supreme Court to overturn Roe v. Wade. The day Mississippi’s governor signed that 2018 law, the state’s only abortion facility sued, citing the Supreme Court precedent that the government may not restrict abortion before the point in gestation when a baby can survive outside the womb. Lower courts agreed and blocked the Mississippi law. The state, and many of the friend-of-the-court briefs, defend the law on the basis that Roe has legal errors made even more obvious by scientific advancements.
A brief filed by a group of biologists who support neither side in the lawsuit draws attention to the scientific reality of unborn life. It cites studies showing that the majority of biologists believe life begins at fertilization, not at the point at which the developing baby can survive outside the womb, called viability. Though the Supreme Court justices in 1973 might have fallen back on viability because they believed there was no consensus about when life begins, the biologists point out that the consensus is clear today: Scientific literature repeatedly refers to fertilization as the creation of a distinct individual. Although the brief is careful to make no call for overturning Roe, it implies the precedent is out of step with modern science.
A brief filed by 12 governors, including South Carolina Gov. Henry McMaster, who signed a bill earlier this year protecting babies from abortion after they have a detectable heartbeat, calls the Roe decision the worst case of the federal judiciary’s intrusion on state sovereignty and a great example of straying from the text of the Constitution. “The court should take this opportunity to … recognize that the text and original understanding of the Fourteenth Amendment have nothing to do with abortion. Rather than creating a federal constitutional right, the court should leave regulating abortion to the States,” the writers say. States are eager to act on scientific consensus and a correct interpretation of the Constitution, the governors said, but federal judges have significantly intruded on their efforts to do that by blocking pro-life laws in court.
Other briefs in the case come from lawyers, professors, politicians, and leading pro-life groups such as the Susan B. Anthony List, Students for Life, and Americans United for Life. One amicus brief, representing 375 and women who have been injured by abortions and others who lead abortion recovery programs, cites evidence that abortion burdens women with psychological troubles. “I have been diagnosed clinically depressed, with anxiety and very low self-esteem,” said one post-abortive Mississippi woman named in the brief as M.B. “This will forever change a person, by that I mean your self-esteem, no self-worth, depression, anxiety, guilt, the what-ifs. The list just goes on and on.”
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