US Supreme Court will hear Dobbs v Jackson Women’s Health Organization important Abortion Case

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US Supreme Court will hear arguments this week in the most important abortion case, since Roe v Wade. The case, Dobbs v Jackson Women’s Health Organization, presents the court with the opportunity to overturn Roe and correct one of the greatest acts of judicial arrogance in history. The traditional insight is that overturning Roe would cause major social disturbance and enduringly damage the legitimacy of the court. But the reality is that overturning Roe will only strengthen the court’s integrity. However, sustaining Roe’s constitutional error under outside pressure would confirm criticisms that the justices are behaving as politicians instead of judges. The court considers in the case of Dobbs, the constitutionality of a Mississippi law that limits abortions after 15 weeks of gestation with exceptions for health emergencies and fetal abnormalities.

Moreover, the rule conflicts with the controlling abortion case of the court including Roe and Planned Parenthood v. Casey, which held that laws may not pose an undue burden on abortion prior to viability. The court had the opportunity in 1992 to overturn Roe in Casey but the court reaffirmed the necessary holding of Roe while replacing legal reasoning wholesale of Roe. An important justification uttered by the Casey court for upholding Roe was its concern for the court’s own legitimacy. The controlling opinion concluded, “A decision to overrule Roe’s essential holding would come at the cost of both profound and unnecessary damage to the court’s legitimacy”. But Casey didn’t support the legitimacy of the court and maintained the divisions and said it was putting to rest.

The issue of abortion drove intense opposition to Kavanaugh’s confirmation as groups like Planned Parenthood and NARAL organized and financed national speaking tours, ads, and armies of protesters. Today, the court finds itself there because of decisions like Roe and Casey. The key problem with Roe from a constitutional perspective is that the court took something that appears nowhere in that document and which therefore is left to the states, and promoted it to a fundamental right. Point to be noted that nothing in the Constitution’s text, structure, history, or tradition supports this innovation. Mississippi put it in its Dobbs brief, “Roe and Casey are profoundly unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law and harmed the perception of this court. Retaining those precedents harms this court’s legitimacy”.