If you take a deep look at the two abortion cases currently before the US Supreme Court, it is readily apparent the news media is grossly misinterpreting them. Pro-abortion advocates and the major news media outlets are themselves either ignorant of the facts of these cases or are intentionally misrepresenting those facts. The portion of the public who follow these sources for information on this topic is being goaded into an emotional frenzy of hate against both the Supreme Court and any State that dares to pass its own abortion laws.
First is the (still pending) emergency appeal to the Supreme Court regarding the new Texas law. The Texas law bans abortions after a fetal heartbeat is detected. However, it is the novel way this law is enforced, not its new legal threshold of a heartbeat, that has been the substance of every lawsuit challenging it thus far. While the Texas legislature created the law, and it was signed by the Governor, the state of Texas itself is not the enforcer of this law. The law states that common citizens are the only possible enforcers. That means any person who believes they have observed the new heartbeat law being violated in the state must take it upon themselves to file a lawsuit against someone involved in that illegal act. Absent this proceeding, the law is not enforced.
So far, each challenge to the Texas law has been against the state of Texas. With one exception, which was quickly overruled1, the courts have so far held that plaintiffs do not have standing to sue the state of Texas since the state does not enforce the law. Also, the law has technically not been applied yet. In the 85 days since this law has been in effect, no private citizen of Texas has attempted to enforce the law by filing suit. This has left prospective plaintiffs without any lawful targets to sue. The “emergency” request presently before the Supreme Court is yet another attempt (in this instance by the Department of Justice) to establish standing for suing the state of Texas over the constitutionality of this law. Should the Supreme Court grant this request, it does not invalidate the Texas heartbeat law. It merely allows a lawsuit to proceed in the lower courts against the state of Texas on the merits of the law, which could be won or lost.
Yet, if you read almost any article in the popular press on this topic, you might be convinced the Supreme Court is deciding on the legality of the Texas law. They are not. Regardless of what the Supreme Court does with the request presently before them, the legal precedents of Roe vs. Wade and Casey vs. Planned Parenthood remain unchanged.
The next case is a true legal challenge to an existing state abortion law. The case is named Dobbs vs. Jackson Women’s Health Organization and is a challenge to the current abortion law in the state of Mississippi. This case comes before the Supreme Court one week from today. The Mississippi law bans abortions after 15 weeks of gestation except if the mother’s health is at grave risk. Unlike the current litigation in the Texas case, if the Mississippi law is upheld, the legal precedent of “viability” as the limiting condition for disallowing abortions (established in Casey vs. Planned Parenthood) would change.
The request to the Supreme Court by the state of Mississippi openly describes their case as one of “pre-viability”. There is no attempt to claim a new viability standard of only 15 weeks gestation. The Mississippi law lists multiple reasons for choosing 15 weeks as its limit, the most prominent among them being the increased risk to the mother beyond that point of gestation. The law cites the statistic that the most common abortion procedure in use after 15 weeks gestation is “dilation and evacuation”. On this point, the wording in the Mississippi law is as follows – “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 law goes on to say – “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”. This appears to be the main point in the law upon which the case will be decided.
Should the Supreme Court uphold the Mississippi law, the legal precedent of fetal “viability” (Casey vs. Planned Parenthood) as the determining factor for when state laws may prohibit abortion would be overruled. It would be replaced with the manner in which the court interprets the 15-week threshold in the Mississippi law. Such a ruling would not outlaw abortion by any means. It would simply set a new standard whereby states who choose to do so may restrict abortions.
Here again, the media and pro-abortion activists are egregiously ignorant in their reporting about the potential consequences of such a decision. The typical shouted propaganda is that Roe vs. Wade will be overturned and abortions will become illegal in the US should the Mississippi law prevail. They are wrong on both counts.
First, the fundamental tenet of Roe vs. Wade is that a woman’s right to privacy (and thus her right to have an abortion) is derived from the 14th amendment of the Constitution. This precept did not change with Casey vs. Planned Parenthood, nor does it change with either the Texas or Mississippi laws. The only thing that does change is the point during gestation after which a state may restrict abortion. In Roe vs. Wade that point was set at the dividing line between the 2nd and 3rd trimesters. In Casey vs. Planned Parenthood, that point was reset to be the moving threshold of fetal “viability”. In the Mississippi law, that point is reset to be 15 weeks. In the Texas law, that point is reset to the detection of a fetal heartbeat (about 6 weeks).
Second, if the Supreme Court upholds the Mississippi law, there would be no effect whatsoever on the legality of abortion in any other state with laws less restrictive than Mississippi’s. As an example, in states like New York and California, where there are few if any restrictions on abortion, nothing would change. Abortion would remain just as legal in those places as it has been. What would change is that the new Dobbs vs. Jackson Women’s Health Organization legal precedent would provide cover to any state wanting to pass an abortion law similar to the Mississippi law.
The only current state law that truly challenges the fundament precept of Roe vs. Wade is the Human Life Protection Act in the state of Alabama. This act was signed into law by the Governor of Alabama on May 15, 2019. It bans all abortions irrespective of the gestational age of the fetus. The law directly challenges that a woman has a “right” to have an abortion derived from the 14th amendment. There is an injunction presently in place preventing this law from going into effect while it works its way through the courts. Its chain of legal proceedings has not yet led to the Supreme Court.
It is admittedly difficult to get truth on this topic without directly reading the state laws in question and the resulting, and sometimes lengthy, court opinions. It is clear to us however that very few news organizations want to tell you all these facts. In this case, the truth is a bit less exciting and would probably draw a smaller audience. It’s much better for the media to leave you believing very much more is at stake so you’ll keep watching, and in some cases, fuming.
1 On October 6th of this year, Judge Robert L. Pitman, an Obama appointee, issued a temporary restraining order stopping the Texas heartbeat law. His order was overturned by the 5th Circuit Court of Appeals less than 48 hours later.