Apart from all the constitutional fine points in respect of abortion, the grant by the Supreme Court of certiorari on yet another challenge underscores the failure of Roe v. Wade. We are coming up on 50 years since the Nine, in a seven to two decision, concluded that a right to privacy protects abortion. Yet the country and our states remain bitterly divided — and, in some ways, seem to be growing more so every year.
The current case arises from Mississippi. It challenges a law the Magnolia State passed prohibiting nearly all abortions after the baby has a gestational age of 15 weeks. The law was struck down in federal district court. Mississippi appealed to the riders of the 5th Circuit, who sustained the district court ruling. The most memorable part of it, though, was a concurrence, by Judge James Ho, that is just flabbergasting. Here’s how it begins:
“Nothing in the text or original understanding of the Constitution establishes a right to an abortion. Rather, what distinguishes abortion from other matters of health care policy in America — and uniquely removes abortion policy from the democratic process established by our Founders — is Supreme Court precedent. The parties and amici therefore draw our attention not to what the Constitution says, but to what the Supreme Court has held.”
The thing to remember about that paragraph is that it is the start of a concurring opinion — meaning, from a judge who agrees that the Circuit Court can’t let Mississippi ban abortion after the baby has been gestating for 15 weeks. He’s saying not that Mississippi’s new law is unconstitutional but that he and Mississippi are bound by Supreme Court precedent. In other words, only the Supreme Court can, and it can, do the right thing.
Then Judge Ho — remember, this is a concurring judge — announces that he is “Deeply troubled by how the district court handled this case.” He asserts that the district court’s opinion “displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life.”
Judge Ho goes on to say that the federal district court “no doubt believes that its opinion faithfully reflects one side of the debate — the side that believes that abortion is a necessary component of a woman’s personal autonomy.” But the Supreme Court has made clear that both sides deserve respect, Judge Ho notes, adding: “Countless Americans believe in good faith that abortion is ‘nothing short of an act of violence against innocent human life.’”
Those countless Americans, Judge Ho notes, happen to include some members of the Supreme Court who, in Planned Parenthood v. Casey, upheld Roe. He quotes them as saying “[s]ome of us as individuals find abortion offensive to our most basic principles of morality.” Judge Ho scores the district court’s disparagement of the Mississippi legislation as “pure gaslighting.” It “equates a belief in the sanctity of life with sexism” and links the law to racial bigotry.
Judge Ho’s concurrence reads almost like a judicial primal scream, beseeching the Supreme Court to lift from the courts some of the burden of Roe and transfer it to Congress or state legislatures. No wonder the Supreme Court agreed to take another look. It might not be merely that there are new, conservative justices on the bench. It could be that at least four members of the Nine sensed in the case from Mississippi that the lower courts are buckling under the task of upholding Roe.
That, incidentally, was predicted by no less a sage than Justice Antonin Scalia in his historic dissent in Casey. He warned that by “foreclosing all democratic outlet for the deep passions this issue arouses” and “banishing the issue from the political forum,” the Court “merely prolongs and intensifies the anguish.” He reckoned the court should “get out of this area, where we have no right to be.” In the Mississippi case, opportunity knocks again.