ON WEDNESDAY, the Supreme Court will hear oral arguments on Dobbs v. Jackson Women’s Health Organization; the Court’s first real opportunity to revisit its abortion jurisprudence since 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey.
Mississippi’s Gestational Age Act restricts abortion after 15 weeks gestational age. Upon passing the law in 2018, the state’s only abortion provider sued. A federal district court ruled that existing jurisprudence does not permit states to pass laws prohibiting abortion prior to fetal viability, established at 23 or 24 weeks under Casey. The Fifth Circuit Court of Appeals upheld that decision. When the Supreme Court took up the case, justices said they would consider “whether all pre-viability prohibitions on elective abortions are unconstitutional.”
Now, think back to June 2020. On your television set, you saw riots and unrest in the streets of 28 American cities. Screams of injustice and demands for change echoed throughout the country. Amid the mayhem, not far from where it all started in Minnesota, a premature baby was born after only 21 weeks gestation. Richard weighed less than a pound and could fit in an adult-sized hand.
Exactly one month later in Alabama, a young woman gave birth to twins, a boy and a girl. She was only 21 weeks pregnant. Sadly, she lost the girl. But Curtis, the boy, survived.
Today, Richard and Curtis are the most premature babies to live to see their first birthdays. They are thriving. They are loved. They both have a future.
And their very lives challenge legal orthodoxy on the question of viability.
The Court is expected to release its decision on Dobbs in June 2022, perhaps in time for Richard’s second birthday. No one knows how it will rule. Much has changed in America since the Court last took on a serious challenge to Roe v. Wade, its landmark abortion decision.
To begin with, the Court is considered to be much more conservative today than at any other time in recent history. However, Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — all thought to be conservative — have not served long enough for court watchers to form an understanding of their legal worldview.
In addition, while public sentiment still favors legal abortion, polls show Americans support restrictions on the practice. In September, Marquette University Law School released a poll showing 40% of Americans favor upholding a 15-week limit while 32% oppose it.
Finally, miracle babies like Richard and Curtis remind us that viability is a moving target.
What does all of this mean for New Hampshire? Probably not much in terms of our laws regarding abortion. New Hampshire’s law restricts abortion after 24 weeks, which poses no challenge to Casey’s definition of viability.
But New Hampshire’s politics — indeed, the nation’s — will upend if the Court decides to overturn Roe v. Wade. As is plainly obvious to all, New Hampshire Democrats would prefer to talk about anything other than the Biden’s administration’s inept handling of, well, everything. From inflation to gas prices to foreign affairs to COVID, the nation is worse off now than when Biden took office. New Hampshire Democrats need a lifeline.
What’s more, New Hampshire Democrats love to talk about abortion, though they prefer the anodyne and deceptive term “women’s health care.” As observed in this column previously, the public knows much more about our federal delegation’s thoughts about abortion laws in Texas than their positions on the multi-trillion-dollar reconciliation plan.
Too often, Republican office holders, on the advice of their consultants, believe they can change the subject when the issue of abortion arises. Many of them would far prefer to debate corporate tax policy than defend the unborn. But Dobbs leaves that strategy, um, unviable. If the Court reverses Roe, American politics as we know it will change radically. No one will be permitted to sit the issue out. Republicans should prepare now for the coming battle.
Abortion stops a beating heart. One cannot truly support human rights without supporting protections for the unborn, the most vulnerable among us. It hurts the political Left to hear these words because they know them to be the truth. Will Republicans have the courage to speak them?
It is oddly poetic that baby Richard was born amidst a furious, sometimes violent, national debate about justice. Every breath he takes is a blow for justice against a legal regime that sees him merely as pre-viable.