Experts say Mississippi’s abortion law is constitutional and that Roe/Casey should be overturned

Author: Shannon Roddel

ND Experts

Carter Snead

Carter Snead

Notre Dame Law School

Richard Garnett

Richard Garnett

Notre Dame Law School

Supreme Court
Supreme Court

On Wednesday (Dec. 1), the Supreme court of the United States will hear arguments in Dobbs v. Jackson Women’s Health Organization, a Mississippi case in which the court will decide whether the rule clearly stated in Planned Parenthood v. Casey — that all bans on abortions prior to viability are unconstitutional — is still good law. Dobbs is widely viewed as the most important abortion case the Supreme court has considered since Roe v. Wade in 1973 and Casey in 1992.

Mississippi’s law is constitutional, and Roe v. Wade and Planned Parenthood v. Casey should be overturned, according to both O. Carter Snead, a professor of law at Notre Dame Law School and director of the de Nicola Center for Ethics and Culture, and Richard W. Garnett, the Paul J. Schierl/Fort Howard Corporation Professor of Law and director of the Law School’s Program on Church, State & Society.

Both Snead and Garnett filed amicus briefs in the case.

“The court’s abortion jurisprudence is completely untethered from the Constitution’s text, history, and tradition,” Snead and his co-author note in their brief. “It has imposed an extreme, incoherent, unworkable, and antidemocratic legal regime for abortion on the nation for several decades (pursuant to constantly shifting rules, standards, and rationales),” and thus principles of stare decisis warrant overruling these precedents.

“The court’s abortion jurisprudence grafted onto the Constitution a vision of what it means to be and flourish as a human being that isolates mother and child, pitting them against one another in a narrative of zero-sum conflict among strangers, depriving them of much needed sources of protection, support, and care.”

Garnett and his co-authors also argue that stare decisis considerations favor overturning Roe v. Wade and Planned Parenthood v. Casey.

“As a matter of the Constitution’s text and history, it is no secret that Roe is not just wrong but grievously so. Roe was roundly criticized as wrong the day it was decided, it has been robustly opposed both within and outside the court ever since, and no sitting justice has defended the merits of its actual reasoning,” Garnett and his co-authors state in their brief.

“By the narrowest of margins, this court in Planned Parenthood v. Casey refused to overrule Roe — not because it thought Roe was correct, but because it thought Roe must endure as a matter of stare decisis. But 30 years later it has become clear that Casey, too, was egregiously wrong, for each one of the stare decisis factors cited by Casey itself supports Roes repudiation.”

According to Snead, “Fidelity to the Constitution, the judicial role, and the goods served by the prudential doctrine of stare decisis — stability, transparency, sustainability, and the perceived integrity of the judicial process warrant the wholesale reversal of Roe and Casey and restoration to the political branches of government the authority long enjoyed by our friends and neighbors in other countries around the globe to enact laws and policies that care rightly for vulnerable mothers, children (born and unborn), and families in need.”

 

Contact: O. Carter Snead, 574-631-8259, snead.1@nd.edu; Richard W. Garnett, 574-631-8078, rgarnett@nd.edu