Crosstalk: December 3, 2021

It was dubbed the biggest abortion case since Roe v. Wade as yesterday oral arguments were held in the case of Dobbs v. Jackson Women’s Health Organization.  

Appearing with Jim to present his evaluation of the case was Mat Staver.  Mat is founder & chairman of Liberty Counsel.  Mat is a constitutional attorney with over 230 published legal opinions, has authored 8 scholarly law review publications and 10 books.  He’s filed numerous briefs and argued in many federal and state courts.  He has also argued two landmark cases before the U.S. Supreme Court.

The issue presented in this case is whether it would be upheld contrary to all court precedent going back to the 1973 Roe case.  This is because Mississippi passed a law that bans abortions beginning at 15 weeks.  This is prior to what’s termed viability which is the baby’s ability to live outside the womb.  The controversy is over this viability issue which Mat indicated is considered about 22-24 weeks depending upon the circumstances.

Mat then proceeded to review some legal history beginning with Roe and the trimester system that came forth from that case.  In the first trimester the state has no interest in regulating abortion.  During the second trimester the state can put some regulations on abortion such as physician licensing or where abortions take place.  During the third trimester, when you’re well past the 22 week viability period, the state can put even more restrictions on abortion, but even then, they can’t completely ban them.

In 1992 we had Planned Parenthood v. Casey.  The discussion at the time was that it would overrule Roe because medical technology had made Roe’s trimester system obsolete, as now children could be born into the second trimester and survive.  So the central core of Roe, the trimester system, had to go.

Eventually it was a 5-4 decision to overturn Roe.  Chief Justice Rehnquist was writing the opinion, but Souter and O’Connor pressured and lobbied Kennedy.  30 days after the opinion was in the process of being written, he flipped his vote and switched sides.  Eventually it was a decision to uphold abortion but to also throw out the trimester system and replace it with a so-called viability marker concerning a child’s ability to live outside the womb on its own.

It’s this viability issue that’s been part of the court precedence since that time.

Moving up to 2018 we have Mississippi that passed its law banning abortion long before viability (15 weeks).  So the lower courts followed the Supreme Court precedent and struck this law down as did the court of appeals.  However, some of the judges on the court of appeals lamented to the Supreme Court that they were following this only because they’re required to adhere to what SCOTUS is doing, but they didn’t like it and felt it ought to be reconsidered and overturned.

Mat believes the Supreme Court could have simply ignored the case because of precedence from their own past cases.  In other words, why take a case that follows their own precedence unless they want to re-examine that precedence.  They have taken the case and that’s what’s brought us to the oral arguments that took place yesterday. 

Mat has much more to say concerning this case and abortion in general, while listeners bring their own questions and views to the discussion.

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