Published May 18, 2021
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.
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Henry Olsen is a Washington Post columnist and a senior fellow at the Ethics and Public Policy Center.