Abortion and the Constitution, by Andrew P. Napolitano

The key Constitutional concept in the abortion debate, according to Andrew Napolitano, is not viability but personhood. From Napolitano at lewrockwell.com:

“The fetus has an interest in having a life.”
–Supreme Court Justice Samuel A. Alito Jr., Dec. 1, 2021

Last week’s oral argument in the Supreme Court about abortion was both humdrum and arcane. Humdrum because we already knew where the nine justices stand on the morality of abortion. Arcane because the questions and answers were largely not about abortion, but about stare decisis, the legal doctrine that calls for settled law not to be lightly disturbed. What brought this about?

Mississippi has enacted into law a statute that prohibits abortions after the 15th week of pregnancy. That statute directly conflicts with two major Supreme Court opinions on abortion, Roe v. Wade and Planned Parenthood v. Casey.

The 1973 Roe decision establishes a trimester system during which the state’s interest in protecting the life of the baby in the womb does not come into being until the third trimester of pregnancy. More importantly, Roe holds that the states may not ban abortions prior to fetal viability, roughly at the end of the first trimester, around 23 weeks.

The Casey opinion, 19 years after Roe and with a largely different membership in the court, upheld Roe’s no-abortions-until-viability standard and added a new rule that prohibited the states from imposing any undue burden on mothers seeking abortions.

Thus, Mississippi — and Texas, which prohibits abortions after six weeks, right behind it — is effectively asking the court to overrule both Roe and Casey. The Mississippi argument states that because the Constitution is silent on abortion or any kind of killing, its Framers must have intended to leave regulation of those subjects to the states. The counterargument is that women have personal autonomy over their bodies and that autonomy trumps any state interest at any time.

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