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Opinion The Supreme Court can finally overturn ‘Roe v. Wade.’ It should do it.

The Supreme Court in Washington, D.C., on May 17. (Drew Angerer/Getty Images)
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The Supreme Court’s decision to review the constitutionality of Mississippi’s ban on almost all abortions after 15 weeks of pregnancy will likely be a watershed in the nearly 50-year battle over Roe v. Wade. The court should ignore the inevitable whirlwind of elite opinion and do its constitutional duty: uphold the law and overturn Roe.

Roe has been reviled by legal commentators from all political persuasions as a constitutional monstrosity. Noted liberals such as Laurence H. Tribe and Watergate special prosecutor Archibald Cox denounced it upon its release, and even the late progressive icon Ruth Bader Ginsburg called it “heavy-handed judicial activism.” The ruling was so lacking in constitutional grounding and so deficient in providing clear, justiciable standards that it has shackled judges nationwide to a never-ending exercise in deciding the minutia of abortion policy. The post-Roe abortion jurisprudence is perhaps the best example of a judicial system run amok, replacing democratic debate and judgment with the will of lawyers.

For defenders of abortion access, this alone should be troublesome. Almost every other developed country has made abortion legal, and they did so almost uniformly through democratic debate and law. The time frame during which abortions are allowed differs from country to country, with some such as France and Norway limiting it to about 14 weeks or less of pregnancy, while others such as Australia and Britain allow it for longer periods — even up to 24 weeks of pregnancy. But in all of these nations, abortion law is largely settled and does not roil politics. The matter was decided by open democratic debate, and as such, the resultant settlement is supported by all major political actors. This fact has given secure access to abortions for women who want them.

Overruling Roe would return abortion policy to where it was previously: the people of each state. Liberal states such as California or New York would surely pass bills allowing abortion well into a pregnancy; indeed, New York has already passed a liberal abortion law. Meanwhile, conservative states such as Mississippi would pass laws banning or severely restricting abortion. Even conservative states, however, would likely retain exceptions for cases such as those that threaten a mother’s life.

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This surely will distress activists on both sides, but over time, democratic compromise will win out. As my Ethics and Public Policy Center colleague Ed Whelan points out, return of abortion policy to the states will be both “tumultuous” and “very likely to yield a mix of results that most people will find satisfactory.”

The alternative — upholding Roe and finding Mississippi’s law unconstitutional — would have serious moral consequences. Let’s not shy away from saying what those who want to strike down the law support: the killing of a separate human life contained within the mother. A 16-week-old unborn child has developed its own brain, heart and limbs. It may even hear sounds in the mother’s body. By week 16, the risk of miscarriage is less than 1 percent. A 55-to-64-year-old man has a higher chance of dying in the next year.

The argument in favor of killing that unborn human life must thus rest on the contention that the mother has no moral obligation to keep it alive. If we accept that argument, one must then ask how far that it extends. Viability outside the womb cannot suffice as a limiting principle since infants are as dependent on other people to stay alive as the unborn child. If it is morally acceptable to cause a human’s death by refusing to keep it alive inside the womb, then it must also be morally acceptable to refuse to act to keep it alive during its dependent, infant state outside the womb.

One cannot avoid this moral conundrum by simply contending that abortion is a matter of rights and not a democratic discussion. The undeniable fact that the unborn child is a separate human being leads some pro-life thinkers to use the language of rights themselves. These people contend that the unborn child’s right to life trumps the woman’s right to liberty, and as such the 14th Amendment’s prohibition on depriving a person of the right to life should be interpreted to ban virtually all abortions nationwide. This is an extreme minority view among pro-lifers, but if a 6-to-3 court majority cannot summon the energy in this case to uphold Mississippi’s law, expect support for that view to grow. Legislating morality through judicial fiat can only encourage extreme thinking on both sides, as extremists can see a path to victory once the messy problem of public opinion is dispensed with.

The Supreme Court has for too long turned a blind eye to law and life. Upholding Mississippi’s law and overturning Roe would strike a strong blow for both.

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Read more:

Jennifer Rubin: The Supreme Court’s abortion case fundamentally changes upcoming elections

Leah Litman and Melissa Murray: Make no mistake: The Supreme Court is coming for ‘Roe’

Paul Waldman: Roe v. Wade’s survival just got a little more unlikely

David Von Drehle: The anti-‘Roe v. Wade’ movement is increasingly disconnected from facts

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