Next term, the Supreme Court will hear Dobbs v. Jackson Women’s Health Organization, the case concerning Mississippi’s statutory 15-week gestational ban on most abortions. Dobbs represents the best chance in decades for a legal breakthrough in the fight against abortion. Earlier this month, Robert P. George wrote that in Mississippi’s Dobbs brief, Mississippi Attorney General Lynn Fitch should call for the overturning of Roe v. Wade and its progeny, Planned Parenthood v. Casey.
“Her brief is due on July 22,” George wrote on July 1. “And if Attorney General Fitch waters down her arguments to the Court, contrary to her duties to the state, to the pro-life voters who elected her, and to the causes of justice and the rule of law, there must be a severe political reckoning.”
That brief has now been filed, and Fitch has delivered the goods. “Roe and Casey are . . . at odds with the straightforward, constitutionally grounded answer to the question presented [in this case],” Fitch wrote last Thursday on behalf of her client, the Magnolia State. “So the question becomes whether this Court should overrule those decisions. It should.”
Bravo. This is outstanding news.
Sherif Girgis has argued that upholding Mississippi’s law on narrow grounds, in such a way that Roe and Casey are not themselves disturbed, would be exceedingly difficult if not impossible. The duly enacted Mississippi statute challenged in Dobbs is indeed at loggerheads with Roe and Casey, as both Robert George and Ed Whelan have argued. Anything less than a clarion call from Mississippi’s leading advocate to overturn those cases standing in the way of upholding that statute would have represented a dereliction of duty.
Fitch deserves credit not merely for her admirably pellucid language about Roe and Casey—“Roe and Casey are egregiously wrong”—but also for her strong contention that traditional stare decisis norms ought not to prevent the actual overturning of these deeply flawed constitutional precedents. As Michael Stokes Paulsen and I (among others) have argued, judicial reliance upon stare decisis norms in constitutional interpretation in our system of governance is not merely contrary to sound principles of judging: For the most part, such reliance is actually unconstitutional.
While stare decisis in English common law developed as an indispensable and conservative doctrine based in historical empiricism and epistemological humility, its operation in the context of United States constitutional interpretation is not at all analogous to that distant English forebear.
Under the Constitution’s Article VI Oath Clause, all legislative, executive, and judicial officers of both the federal and state governments vow to “support this Constitution”—not “this Constitution as nine justices have interpreted it or misinterpreted it,” but “this Constitution.” Period. As I argued last year: “For the same reason the Article VI Oath Clause instructs a judge to prefer the Constitution to statutes repugnant thereto”—the crux of Chief Justice Marshall’s 1803 ruling in Marbury v. Madison—“so too does it necessarily instruct judges to prefer the Constitution to judicial precedents repugnant thereto.” And when a precedent is “demonstrably erroneous,” as Roe and Casey are, it may not even “remain relevant” for future adjudications on the underlying matter.
AG Fitch’s brief is also distinguished by the inclusion of a subsection about recent advances in embryology and prenatal science that undermine Roe’s emphasis on “viability” as the gestational point before which a state’s interest in prenatal life is not strong enough to warrant an abortion ban. She even noted that the U.S. “finds itself in the company of China and North Korea as some of the only countries that permit elective abortions after 20 weeks’ gestation.” Other legal advocates might have shied away from such a bold line, preferring to make that pointed comparison in an op-ed and not a legal brief. But pro-lifers should be grateful that the justices on the high court will now see that stark and bloody reality laid out so clearly.
The Dobbs case, once it reaches the marble palace, will be a moment of truth. For pro-lifers who want nothing more than to put an end to this nation’s horrific five-decade-old experiment in state-sanctioned prenatal infanticide, it is time to begin praying. In the interim, Attorney General Fitch has gotten us off to a fine start.
Josh Hammer is Newsweek opinion editor, a research fellow at the Edmund Burke Foundation, and a contributing editor of Anchoring Truths.
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Photo by Hydetim via Creative Commons. Image cropped.
