There is No Middle Road in Supreme Court's Abortion Case | Opinion

The U.S. Supreme Court's oral arguments for the term just concluded last week. As the Court's work proceeds behind marble walls, many are speculating about the outcomes we may see as decisions are released. Perhaps no case has garnered as much attention as Dobbs v. Jackson Women's Health Organization, the most significant abortion case the Court has heard in at least 30 years.

In Dobbs, many think it is unlikely that the Court will fully maintain the "right" to abortion as it now stands, which is so expansive that it makes the United States an outlier among most nations. Observers suspect the Court is poised to significantly change its abortion jurisprudence. If they are correct about that, the big mystery is whether the Court will discard the judicially created "right" to elective abortion altogether or simply narrow it.

Either path could give Mississippi a victory as it seeks to defend its prohibition on most elective abortions after 15 weeks of pregnancy. At 15 weeks' gestation, all the unborn child's major organs exist, the child's heart has beat over 15 million times and the child can often be correctly identified as right or left handed based on his or her thumb-sucking preference.

Mississippi has asked the Court to fully overturn its infamous 1973 Roe v. Wade decision, which invented a "right" to elective abortion. From the day Roe was issued, it was assailed as "an exercise of raw judicial power" rather than a faithful interpretation of the Constitution. Indeed, with "nothing in the language or history of the Constitution to support" it, Roe was just a piece of "judicial legislation" designed to advance the policy preferences of unelected Justices.

In other words, the Justices in the Roe majority failed to be neutral umpires who "call balls and strikes" rather than "pitch or bat," to use Chief Justice John Roberts' baseball analogy. But now, the Court has an opportunity to overturn Roe consistent with the view that the Court should apply the Constitution as written, not as any Justice may wish it were written.

If the sitting Justices correct their predecessors' overreach, they will have replaced judicial hubris with judicial humility. By contrast, if the Court attempts a "compromise" by narrowing—but still proclaiming—a "right" to elective abortion, it will repeat Roe's abuse of power by legislating from the bench again. Indeed, creating a modified "right" to elective abortion will be yet another imposition of unelected Justices' policy preferences rather than faithful interpretation of the Constitution as written.

Supreme Court
WASHINGTON, DC - MAY 03: U.S. Supreme Court Police officers set up barricades on the sidewalk as pro-choice and anti-abortion activists demonstrate in front of the U.S. Supreme Court Building on May 03, 2022 in Washington, DC. In a leaked initial draft majority opinion obtained by Politico, Supreme Court Justice Samuel Alito allegedly wrote that the cases Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey should be overturned, which would end federal protection of abortion rights across the country. Anna Moneymaker/Getty Images

In fact, oral argument in Dobbs confirmed that any modified "right" to elective abortion will be arbitrary and legislative in nature. To appreciate that inevitable fact, it helps to look back at Roe and a key admission its author made.

Under prevailing interpretations of Roe, a state cannot protect a child from elective abortion until the child is "viable"—that is, sufficiently developed to potentially survive outside the womb. But Roe's author, Justice Harry Blackmun, admitted in an internal memorandum to his fellow justices that this viability line is "arbitrary." As Justice Antonin Scalia put it, making viability a "magical" line separating children who can be protected from those who cannot makes "no more sense than according infants legal protection only after the point when they can feed themselves."

If the Court wishes to replace—rather than simply erase—this arbitrary line, it faces a dilemma. That's because, as some legal scholars have explained, "there is no plausible new line that isn't as arbitrary and ill-founded as viability." Even U.S Solicitor General Elizabeth Prelogar—who was arguing for legal abortion at oral argument in Dobbsadmitted she does not "think there's any line that could be more principled than viability."

General Prelogar's concession is significant. If no line can be more "principled" than the one that Roe's own author deemed "arbitrary," then any new line the Court may fabricate to preserve some "right" to elective abortion must be arbitrary as well. And many will see that new line for what it is: another instance of an umpire grabbing a bat and joining the game.

Instead of trying to impose its will, the Court should show the nation that it will act as a neutral umpire, calling balls and strikes regardless of how those calls may affect the game's outcome or the umpire's popularity with the crowd. That neutral role should result in a complete rejection of Roe's creation of a "right" to elective abortion because it lacks any basis in the Constitution's text, structure or history.

Yes, a segment of the public will complain about Roe's demise because that outcome is contrary to its agenda. But public backlash will follow any decision on this controversial matter. At least a decision that confines itself to the Court's proper role, rather than one that finds some "right" to elective abortion where none exists, will be defensible and principled. The people—born and unborn—deserve nothing less.

Samuel Green serves as President and General Counsel of Reason for Life, a pro-life nonprofit ministry that filed a friend-of-the-court brief in the Dobbs case. He can be followed on Twitter @ProLifeSamuel.

The views expressed in this article are the writer's own.