The U.S. Supreme Court will hear oral arguments this fall in a pivotal abortion case, Dobbs v. Jackson Women’s Health. At issue is a Mississippi law banning abortion at 15 weeks that is being challenged by abortionists and the Center for Reproductive Rights, a major abortion advocacy organization.
One of the topics under consideration is the Supreme Court’s viability standard that ostensibly prevents state governments from outlawing abortion before fetal viability, or the point at which a baby has the potential of surviving outside the womb.
There are many possible outcomes for the Dobbs case. The Supreme Court could overturn Roe v. Wade and send abortion policy back to the states entirely, or it could allow the states to define viability for themselves. The former scenario would allow the State of Idaho’s abortion ban to go into effect, while the latter scenario would allow the Heartbeat Law that was signed by Gov. Little earlier this year to go into effect.
The justices could also maintain the status quo and allow the lower court decision preventing Mississippi from enforcing its 15-week ban to stand, further entrenching bad court precedent and subjecting millions more preborn babies to state-sanctioned murder.
Several Idaho lawmakers have joined amicus (“friend of the court”) briefs weighing in on the case. These briefs are filed with the Supreme Court and will be used by the justices for legal insight and analysis. Here are three such briefs you should know about:
1. State Legislators Brief
Nearly 400 state legislators from 41 states signed on to an amicus brief in support of Mississippi that heavily relies on the common law “rights of life, limb, and property,” which were recognized for centuries prior to the ratification of the U.S. Constitution and are expressly protected by “the Fifth, Ninth, and Fourteenth Amendments.”
Under common law and the U.S. Constitution, “criminal penalties and civil remedies associated with abortion may vary, though the right to life itself is not negotiable,” the amicus brief states.
The state legislators argue that it is their chief responsibility to “declare and secure [the right to life] of all persons,” but that the Supreme Court’s viability standard “prevents state legislators from doing [their] foremost duty.”
One of the reasons why the Supreme Court should turn the issue of abortion back to the states is that “legislators are better equipped… than courts” for the task of determining how best to protect the right to life.
Idaho signatories: Rep. Brent Crane (R-Nampa), Rep. Barbara Ehardt (R-Idaho Falls), Rep. Greg Ferch (R-Boise), Rep. Priscilla Giddings (R-White Bird), Rep. Ron Mendive (R-Coeur d’Alene), Rep. Tammy Nichols (R-Middleton), Rep. Bruce Skaug (R-Nampa), Rep. Julianne Young (R-Blackfoot), and Sen. Christy Zito (R-Hammett).
2. State Governors Brief
Idaho Governor Brad Little joined eleven other Republican governors in another amicus brief supporting Mississippi’s request to get the federal government out of the abortion question so that it can be returned to the states.
The so-called “states rights” brief explains how federal court decisions regarding abortion have violated the “proper [constitutional] relationship between the states and the federal government.”
Under our system of dual federalism created by the U.S. Constitution, abortion regulations should be a state matter. But abortion decisions “are prime examples” of the federal courts “stray[ing] beyond the Constitution,” the brief says, “upset[ting] the delicate balance the Constitution strikes between [federal] issues [and state] issues.”
3. Abolish Abortion Brief
This brief takes an “immediatist” approach, contending that incremental steps towards outlawing abortion amount to nothing less than validating “the slaughter of innocents.” Such overblown condemnation of pro-life laws that have saved or could save millions of lives – like the Hyde Amendment or ‘Heartbeat’ bills – is exceedingly problematic. Even still, the brief makes several good points.
Its most forceful argument is that the last five decades of abortion decisions have violated both the plain meaning of the Constitution as well as God’s moral law. According to the brief, the Supreme Court “is not only bound by the text of the Constitution, but it is also bound by the limits on human civil authority revealed by God.” This sentiment echoes James Wilson, an original justice on the U.S. Supreme Court, who authoritatively declared that “human law must rest its authority, ultimately, upon the authority of that law, which is divine.”
Furthermore, the brief argues that there are several remaining constitutional remedies if the Supreme Court fails to secure equal justice for the preborn. One such option includes the U.S. Congress limiting the jurisdiction of the federal courts when it comes to abortion, a rarely used power granted to Congress by Article III, Section 2 of the U.S. Constitution. Other courses of action, such as the president refusing to enforce unconstitutional court decisions, or the states refusing to obey such decisions, are also offered as legitimate ways to stand up to judicial overreach.
Idaho signatories: Rep. Priscilla Giddings (R-White Bird), Rep. Ron Nate (R-Rexburg), Rep. Heather Scott (R-Blanchard), and Rep. Tony Wisniewski (R-Post Falls).
The Dobbs case offers the Supreme Court an opportunity to reverse itself when it comes to the greatest moral scandal of our day. Nearly 62 million preborn babies have been slaughtered in America since the Supreme Court invented a right to abortion in 1973. Justice has been delayed much too long, and the blood of the innocent cries out to God.
Christians need to be praying for a favorable outcome that allows the states to protect the right to life of their youngest and most vulnerable citizens. May God grant us wisdom as we work to create a society where every life is valued and protected.