Dobbs v. Jackson Women’s Health Organization concerns Mississippi’s 2018 “Gestational Age Act” which protects babies after 15-weeks gestation (13-weeks after fertilization). Gestation is determined from the time of the mother’s last menstrual period (LMP). Fertilization occurs two weeks later.1
In May 2021, the U.S. Supreme Court agreed to hear the case when they granted a writ of
certiorari, and on December 1, 2021, the Court will hear oral argument addressing the question of whether a state has a compelling interest in protecting the right to life prior to viability.
Viability as a legal standard is unworkable. In 1973, when Roe v. Wade
was decided, 24-26 weeks gestation was considered viability. Today, viability is seen as occurring between 21-22 weeks gestation. 2 As
medical technology advances, viability is a recognition of the current status of our medical technology and not of the development of the child herself.
Mississippi’s law (the “Gestational Age Act”) is seeking to protect a child at a
time when all organ systems are formed and functioning, and the child is simply growing.
The question before the High Court in Dobbs v. Jackson Women’s
Health Organization is whether all prohibitions on abortions performed pre-viability are unconstitutional.
National Right to Life (NRLC) led the debate over partial-birth abortions beginning in
1995 and pioneered new ground in the abortion debate with the passage of the Partial-Birth Abortion Ban Act. The legislation banned a particular abortion procedure that was used both before and after what is considered viability.
The NRLC-led debate over partial-birth abortions broke new ground in the abortion
debate and the constitutional finding by the Court clearly paved the way for future rulings.
The Court also modified and clarified Roe v. Wade by abandoning the
trimester framework that was created in Roe and establishing an “undue burden” test in Casey v. Planned Parenthood (1992).
National Right to Life broke new ground with its introduction of the
Pain-Capable Unborn Child Protection Act (PCUCPA) which protects babies who are capable of feeling pain at 20-weeks after fertilization. After passing the PCUCPA and seeing it go into effect, Mississippi’s legislature introduced the “Gestational Age Act” lowering the gestational age of the baby with the goal of saving more lives.
The Biden administration filed a brief with the Court seeking argument time in the case
in support of the Jackson Women’s Health Organization. 3
Important Highlights of Some Briefs Submitted to
SCOTUS:
In the brief filed by Mississippi Attorney General Lynn Fitch, AG Fitch noted:
There are those who would like to believe that Roe v. Wade settled
the issue of abortion once and for all. But all it did was establish a special-rules regime for abortion jurisprudence that has left these cases out of step with other Court decisions and neutral principles of law applied by the Court. As a result, state legislatures, and the people they represent, have lacked clarity in passing laws to protect legitimate public interests, and artificial guideposts have stunted important public debate on how we, as a
society, care for the dignity of women and their children. 4
According to The Hill, the brief filed by the Biden administration stated
the following:
The brief argues that Roe v. Wade and the subsequent 1992
ruling Planned Parenthood vs. Casey recognize that forcing a patient to continue with a pregnancy is a “profound intrusion on her autonomy, her bodily integrity, and her equal standing in society.”
“At the same time, Roe and Casey recognize that States have important interests, including in protecting women’s
health and the potentiality of human life,” the brief reads. “The Court should reject petitioners’ invitation to upset that careful balance by removing the woman’s interests from the scale.” 5
Social and educational
impact:
In 1973, when Roe v. Wade was decided, the technology did not exist to allow babies to survive outside the womb at 21 or 22-weeks gestation. With the advancement of science, more babies are surviving prior to what has been previously considered “viability.”
Because of advancements in science and technology, the
state has a compelling interest in protecting unborn babies before what is often considered
viability.
It is safe to say that, regardless of what happens, the
law has brought forward to the public the development of an unborn baby at 15-weeks gestation.
Many members of the public, as well as women contemplating
abortion, may not realize how developed a baby is at this stage of pregnancy. Getting accurate information to women facing an unplanned pregnancy is vitally important.
At 15-weeks gestation, a little boy or girl’s heart has been beating for over two months. Brain waves have been detectable for 7 weeks. Other developmental milestones already reached include (All dates below are dated from the mother’s last menstrual period not from fertilization. For dating from fertilization, subtract two weeks.):
At eight weeks of gestation, brain waves can be detected.
6
At nine weeks, the baby is kicking and swimming.
7
At week ten, every organ is in place and the baby can
begin to hear. 8 ,
9
At weeks eleven and twelve, teeth begin to form,
fingernails develop. 10 The baby can turn her head and frown. 11 The baby can hiccup. 12
At week 13, the baby can grasp objects placed in her hand
13; all organ systems are functioning. The baby also has skeletal structure, nerves, and circulation. 14
____________________________
1 Gestation is dated from the mother’s last menstrual period (LMP), this is two weeks earlier
than when fertilization occurs, e.g., 15-weeks gestation is 13-weeks fertilization.
6 O’Rahilly & Müller, The Embryonic Human Brain, 2nd Ed,
1999.
7 Valman & Pearsson, BMJ,
1/26/80.
8 Nilsson, A Child is Born,
1990.
9 Flanagan, Geraldine Lux. Beginning Life. The Marvelous Journey
from Conception to Birth. New York: DK Publishing Inc., 1996.
10 5. Rugh & Shettles, From Conception to Birth,
1971
11 Ibid.
12 Flanagan, Geraldine Lux. Beginning Life. The Marvelous Journey
from Conception to Birth. New York: DK Publishing Inc., 1996.
13 Valman & Pearsson, BMJ,
1/26/80
14 Flanagan, Geraldine Lux. Beginning Life. The Marvelous Journey
from Conception to Birth. New York: DK Publishing Inc., 1996.
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Founded in 1968, the National Right to Life Committee (NRLC), the federation of 50 state right-to-life affiliates and more than 3,000 local chapters, is the nation's oldest and largest grassroots pro-life
organization. Recognized as the flagship of the pro-life movement, NRLC works through legislation and education to protect innocent human life from abortion, infanticide, assisted suicide and euthanasia.
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