Mississippi's case against Roe v. Wade

 National Review:

Lynn Fitch, the attorney general of Mississippi, gets right to the point in the state’s legal brief in defense of its ban on abortions after 15 weeks’ gestation:

On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight. Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational-basis review that applies to all laws.


The two obstacles in that path are Roe v. Wade and Casey v. Planned Parenthood, which ignored text, structure, history — ignored the Constitution nearly completely — to pretend that abortion requires the federal courts to extend it special protection. Fitch and her colleagues explain patiently and thoroughly why those obstacles should be removed. The decisions were “egregiously wrong.” They have inflicted harm to self-government. They have not resulted in the stable consensus the Court has repeatedly sought and predicted. They have rested on premises about the reliability of contraception, the career prospects of women, and the state of medicine that no longer apply if they ever did. These outdated premises are at the heart of the Court’s previous findings about women’s “reliance” on constitutionalized abortion rights.

And they have proven incapable of generating a predictable body of law. The brief notes that just last year, the five justices who agreed to strike down an abortion regulation could not agree on the basis for doing it, and the five justices who agreed on what Casey meant did not reach the same judgment in the case. The justices’ inability to devise a predictable set of rules that protects abortion from legislatures, gives them some leeway to set policy, and has some plausible grounding in the Constitution does not stem from any lack of cleverness on their part. The thing cannot be done.
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Roe v. Wade has been the most contentious Supreme Court case since the Dred Scott decision.  The court has never been able to persuade a majority of Americans that it is alright to kill babies in the womb.

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