SUPREME COURT OVERTURNS ROE v. WADE: Dobbs v. Jackson Womenís Health Organization (June 24, 2022) | Eastern North Carolina Now | Make no mistake, abortion on-demand is not a right guaranteed by the Constitution. No serious scholar, including one disposed to agree with the Courtís result (referring to Roe v. Wade) has argued that the framers of the Constitution intended to create such a right.

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    "Make no mistake, abortion on-demand is not a right guaranteed by the Constitution. No serious scholar, including one disposed to agree with the Court's result (referring to Roe v. Wade) has argued that the framers of the Constitution intended to create such a right...But the Court's decision has by no means settled the debate. Instead Roe v. Wade has become a continuing prod to the conscience of the nation." - Ronald Reagan, from "Abortion and the Conscience of the Nation"

    As we all know, an abortion is a procedure to end a pregnancy. It uses medicine or surgery to remove the embryo or fetus and placenta from the uterus. The question of whether there is a constitutional right for women to abort their pregnancy is perhaps the most controversial issue facing our country right now. It is a moral and religious issue, and one that offends, or should offend, one's conscience. As the United States has enjoyed broad abortion rights since Roe v. Wade was handed down by the US Supreme Court in 1973, the majority of countries around the world have greater limitations on that 'right.'

    In fact, The United States is one of only seven nations in the world that permits nontherapeutic or elective abortion-on-demand after the twentieth week of gestation. Seventy-five percent (75%) of all nations do not permit abortion after twelve weeks' gestation, except (in most instances) to save the life of the mother or to preserve her health.

    Prior to the Roe v. Wade opinion handed down in 1973, the issue of abortion was a state matter, as the opinion actually and correctly pointed out. Abortion is one of the issues reserved to the sovereign states by the Tenth Amendment, which is essentially a restatement of the doctrine of federalism, which is the system of government established by our Founding Fathers. There is no mention in the Constitution or Bill of Rights, specifically, of an express right to an abortion. The ruling rightfully sends the issue of abortion back to the individual states, where it belongs. Roe was, after all, a usurpation of state authority.

    The reality is that every pregnancy involves 2 distinct human lives. The mother's life, as stressed in Roe, is most important and therefore, if the pregnancy poses a health risk, is inconvenient and causes undue stress, will cause a financial burden, etc, then the woman can exercise her "right" to an abortion and terminate the unique life growing inside her. The second life, the life of the unborn, a blessed creation, is minimalized and for all intents and purposes, ignored. A life not wanted is a life not protected or respected. A life unwanted is a life that can be sacrificed and terminated. The very sad thing is that while the pregnant woman may not want the baby she is carrying, there are so many others who would cherish the ability to love that child and offer it a stable home.

    There is a clear ideological divide in our country over the issue of abortion and its rightful place. On the one hand, feminists and feminazis believe they have complete control over their body and whatever is inside it and they alone have the right to decide what to do. The Supreme Court gave them "a constitutional right to an abortion" with Roe and they refuse to want to give that gift up. We see how they are behaving. The motivation for the Roe case was to give woman the right to an abortion in order to control her body and allow her to achieve full equality with males in employment.

    On the other hand, there is a huge majority who believes that abortion offends the conscience of our Christian nation. If we expect our Divine Creator to guide and protect us, we must believe as He believes and as Jesus has taught us.

    As Justice Samuel Alito stated in his opinion: "Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case (Dobbs), 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions."

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    The reality is that the Dobbs v. Jackson Women's Health Organization ruling will not take away a woman's ability to get an abortion. In most cases, the ability will just be limited to a certain time frame. Liberal (blue) states will no doubt continue enacting laws to recognize and permit abortions, and I would imagine that many will even enlarge that right. Conservative (red) states will most likely either prohibit abortions (highly unlikely) or severely restrict them (like Mississippi has done with its Gestational Age Act).

    In the end, liberal pro-abortionists will not have suffered, nor will suffer, as they are so vocally and demonstratively claiming.

    I'm not taking the position that all abortion should be prohibited. I believe that a woman, if she suspects she might be pregnant, should be able to: (1) obtain the "Morning-After" pill, or (2) have an abortion up until the fetus is nearly fully-formed and can feel pain. Otherwise, an abortion will not only kill the developing child, but will also torture it.

    BACKGROUND:

    The abortion law at the center of the Dobbs case is Gestational Age Act adopted by the state of Mississippi in 2018. It was enacted to limit abortions to a time up to the fifteenth (15th) week of gestation.

    The bill reads:

    Medical and other authorities now know more about human prenatal development than ever before including that:

    1. Between five (5) and six (6) weeks' gestation, an unborn human being's heart begins beating.

    2. An unborn human being begins to move about in the womb at approximately eight (8) weeks' gestation.

    3. At nine (9) weeks' gestation, all basic physiological functions are present. Teeth and eyes are present, as well as external genitalia.

    4. An unborn human being's vital organs begin to function at ten (10) weeks' gestation. Hair, fingernails, and toenails also begin to form.

    5. At eleven (11) weeks' gestation, an unborn human being's diaphragm is developing, and he or she may even hiccup. He or she is beginning to move about freely in the womb.

    6. At twelve (12) weeks' gestation, an unborn human being can open and close his or her fingers, starts to make sucking motions, and senses stimulation from the world outside the womb. Importantly, he or she has taken on "the human form" in all relevant aspects. Gonzales v. Carhart, 550 U.S. 124, 160 (2007).

    7. The Supreme Court has long recognized that the State of Mississippi has an "important and legitimate interest in protecting the potentiality of human life," Roe v. Wade, 410 U.S. 113, 162 (1973), and specifically that "the state has an interest in protecting the life of the unborn." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 873 (1992).

    8. The majority of abortion procedures performed after fifteen (15) weeks' gestation are dilation and evacuation procedures which involve the use of surgical instruments to crush and tear the unborn child apart before removing the pieces of the dead child from the womb. The Legislature finds that the intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.

    9. Most obstetricians and gynecologists practicing in the State of Mississippi do not offer or perform nontherapeutic or elective abortions. Even fewer offer or perform the dilation and evacuation abortion procedure even though it is within their scope of practice.

    (ii) Abortion carries significant physical and psychological risks to the maternal patient, and these physical and psychological risks increase with gestational age. Specifically, in abortions performed after eight (8) weeks' gestation, the relative physical and psychological risks escalate exponentially as gestational age increases. L. Bartlett et al., Risk factors for legal induced abortion mortality in the United States, Obstetrics and Gynecology 103(4):729 (2004).

    (iii) Importantly, as the second trimester progresses, in the vast majority of uncomplicated pregnancies, the maternal health risks of undergoing an abortion are greater than the risks of carrying a pregnancy to term.

    (iv) Medical complications from dilation and evacuation abortions include, but are not limited to: pelvic infection; incomplete abortions (retained tissue); blood clots; heavy bleeding or hemorrhage; laceration, tear, or other injury to the cervix; puncture, laceration, tear, or other injury to the uterus; injury to the bowel or bladder; depression; anxiety; substance abuse; and other emotional or psychological problems. Further, in abortions performed after fifteen (15) weeks' gestation, there is a higher risk of requiring a hysterectomy, other reparative surgery, or blood transfusion.

    (v) The State of Mississippi also has "legitimate interests from the outset of pregnancy in protecting the health of women." [Planned Parenthood of Southeastern Pennsylvania v. Casey] as the "medical, emotional, and psychological consequences of abortion are serious and can be lasting ..."

    (c) Based on the findings in paragraph (a) of this subsection, it is the intent of the Legislature, through this section and any regulations and policies promulgated hereunder, to restrict the practice of nontherapeutic or elective abortion to the period up to the fifteenth week of gestation.

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    Mississippi's Gestational Age Act provides that 'except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks."

    Mississippi Governor Phil Bryant signed the bill into law, commenting publicly that he was "committed to making Mississippi the safest place in America for an unborn child, and this bill will help us achieve that goal." He added: "We'll probably be sued here in about a half hour, and that'll be fine with me. It is worth fighting over."

    As predicted, within a day of the Gestational Age Act's passage, Mississippi's only state-run abortion clinic, Jackson Women's Health Organization (Jackson Women's Health Center), and one of its doctors, Sacheen Carr-Ellis, sued state Health Officer Dr. Thomas E. Dobbs and Kenneth Cleveland, executive director of the Mississippi State Board of Medical Licensure, in federal district court to challenge the Act's constitutionality of the law. They argued that the court should adhere to its longstanding principle of stare decisis ("let the ruling stand") and continue to recognize the constitutional right to abortion. Petitioner Dobbs in defending the law, argued that the Court should overturn Roe v. Wade (1973) for its incorrect assertion that there is a constitutional right to an abortion or alternatively, should reject viability as an unworkable and imprecise measuring tool. In short, Dobbs asked the court to overturn both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). In response, Respondent Jackson Women's Health Organization (Jackson Women's Health Center),

    The District Court granted summary judgment and permanently enjoined enforcement of the Act, reasoning that Mississippi's 15-week restriction on abortion would likely be found violative of a woman's right to terminate a pregnancy prior to viability. The Fifth Circuit thereafter affirmed.

    Those defending the Gestational Age Act (ie, petitioners) have taken the position that both Roe and Casey were wrongly decided and that the Act is constitutional because it satisfies rational-basis review (the ordinary legal standard of review when a non-constitutional right is at stake). The Supreme Court agreed with them.

    In 1973, in his dissenting opinion in Roe, Justice Byron White characterized the decision of the Court as an "exercise of raw judicial power" that has sparked a national controversy that has embittered our political culture for a half century.

    OVERVIEW OF THE RULING:

    In a 6-3 opinion, written by Justice Samuel Alito, the Supreme Court held that Constitution, in fact, does NOT confer a right to abortion. The Court concluded that Roe and Casey were both incorrectly decided and are now, by this opinion, overruled. What this opinion means is that the authority to regulate abortion is returned to the people of the individual states and their elected representatives - where it rightfully belongs.

    The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. If it does, then Roe must be allowed to stand. But if not, then the Court is obligated to determine if a mistake had been made and the nature of that mistake.

    Casey's controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis (which is a latin term which informs the federal courts that they must allow a former opinion to continue to stand). A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based. The Court therefore had to turn to the question that Roe addressed: Whether there is an articulated constitutional right to an abortion. And second, to the question that the Casey plurality did not consider: Whether the Fourteenth Amendment's reference to 'liberty' protects a particular right.
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