Not even the most strident defender of abortion rights would call the 1973 Roe v. Wade decision a model of elegant jurisprudence. But as six conservatives on the Supreme Court itch to strike it down — on the grounds that women’s bodily autonomy during pregnancy, at least until a fetus is thought to be viable outside the womb, is not rooted in any language of the Constitution — an inconvenient truth shouts back: They have no better dividing line to offer than viability.
Which is to say, it is highly likely that if the anti-Roe votes carry the day, upholding Mississippi’s 15-week abortion ban, they will wind up giving state legislatures license to outlaw abortion from whatever date they see fit, right up to the moment of conception. If viability, which generally comes at around 24 weeks, isn’t the best legal demarcation between permissible and impermissible termination of pregnancy, what is? Silence fills a court where no one is ever at a loss for words.
The viability standard is based on the sensible notion that, as a matter of basic liberty, women must have control over their reproductive systems — but that the state’s interest rises, and a woman’s wanes, as a fetus becomes capable of living outside the womb.
Roe’s foes sometimes suggest that one alternative is adapting a standard from 1991′s Casey v. Planned Parenthood ruling, shredding the 24-week rule and simply asserting in its place that states may not place an “undue burden” on the right to abortion. This could let the 15-week ban in question stand because most terminations occur before that time in a pregnancy. But conservatives should be loath to toss a ruling they revile for being unprincipled and replace it with a cobbled-together, convenient but unsustainable hash.
The late Colin Powell had a rule of warfare he called the Pottery Barn rule: You break it, you buy it. The same goes for Supreme Court precedents. If it shatters an imperfect, half-century-old standard, it owns whatever mess it replaces it with.
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