A case for upholding Mississippi abortion law

 Power Line:

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I think Roberts has a plausible theory for upholding Mississippi’s 15 week ban without overturning Roe. He can point to precedent in the form of the Court’s other major abortion ruling, Casey. That case did not overturn Roe’s finding of a constitutional right to abortion (it reaffirmed it), but did reset the period in which that right exists to pre-viability — i.e., up until the time when, it is believed, a fetus can survive outside the womb. This decision altered Roe, which set the period a few weeks later, at the end of the second trimester of pregnancy.

During oral argument, Roberts made the point that “viability” has little, if anything, to do with the alleged right[s] Roe protects. A woman’s “right to choose” is impaired as much by being pregnant after the fetus is viable as it is before. The hardship of pregnancy only increases the longer it lasts.

Roberts also observed, or at least implied, that the “reliance” (or expectation) interest in preserving Roe would not be significantly altered by upholding a 15 week rule. This is an important point because reliance is a key factor in determining whether to reverse a Supreme Court precedent. The more that people have come to rely on a precedent, the less willing the Court ordinarily is to overturn it.

The vast majority of abortions occur before 15 weeks (90 percent of them, according to Roberts’ sources). Thus, although there undoubtedly is some “reliance” on drawing the line where it is now, at viability, that reliance isn’t nearly as substantial as is the reliance on the “right” to obtain an abortion much earlier.

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While this may be a reasonable rationalization of a result, it does not deal with the fact that Roe had no constitutional basis, to begin with.  It should be overturned and allow the states to set their own policy on the issue.  That would also mean that the challenge to Texas "heartbeat" law would fail.