MONTGOMERY, Ala. — Four Alabama Supreme Court justices have used a ruling in an abortion case as an opportunity to call the U.S. Supreme Court to overturn the 1973 decision of Roe v. Wade and the 1992 opinion of Planned Parenthood v. Casey — precedents that have perpetuated the shedding of innocent blood in America.
“The time has come for the United States Supreme Court to overrule Roe and Casey. I respectfully urge the court to do so at the earliest opportunity,” wrote Associate Justice Jay Mitchell. “I also encourage other courts across the country to raise their judicial voices, as appropriate, by pointing out the constitutional infirmities of Roe and Casey and asking the Court to overrule those highly regrettable decisions.”
Mitchell made the comments in a concurrence outlining that the Alabama Supreme Court, due the plaintiff’s noncompliance with an appellate procedural rule, could not hear the appeal of case involving a man who sued an abortion facility for killing his unborn child.
“[T]he central holding of Roe — that there is a constitutional right to have an abortion based on a judicially created trimester framework — has no grounding in the text of the United States Constitution,” he said.
Mitchell pointed to the words of Justice Clarence Thomas, who said earlier this year in June Medical Services v. Russo, “Roe is grievously wrong for many reasons, but the most fundamental is that its core holding — that the Constitution protects a woman’s right to abort her unborn child — finds no support in the text of the Fourteenth Amendment.”
He noted that the Supreme Court likewise “invented” a new standard in Planned Parenthood v. Casey when it opined that entities can’t place an “undue burden” on ability to obtain an abortion.
Mitchell further outlined that at no point in history is there any indication that mothers have any “right” to abortion.
“The English common law did not recognize a right to have an abortion,” he noted, and “[b]y the time the Fourteenth Amendment was adopted in 1868, at least 36 states and territories had laws limiting abortion.”
“To conjure the right to have an abortion from the Due Process Clause, the United States Supreme Court ‘had to find within the Scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment,'” Mitchell said, quoting in part from Roe dissenter William Rehnquist.
“And while we are bound by text rather than drafters’ intentions, no reasonable person in 1868 would have equated ‘liberty’ — let alone ‘due process of law’ — with ‘right to have an abortion.'”
He therefore concluded that the case is “ripe for reversal” from the U.S. Supreme Court.
“Roe and Casey are untethered from the text and history of the Constitution and, for that reason, have never been accepted by a critical mass of the American people,” Mitchell stated. “Further, those precedents require judges — many of whom are unelected — to make policy decisions that lie outside the judicial power.”
He was joined in his opinion by Chief Justice Tom Parker, as well as Justices Michael Bolin and Kelli Wise.
As previously reported, in 2018, Parker similarly called for Roe v. Wade to be overturned, declaring, “The judicially created exception of Roe is an aberration to the natural law and the positive and common law of the states. Of the numerous rights recognized in unborn children, an unborn child’s fundamental, inalienable, God-given right to life is the only right the states are prohibited from ensuring for the unborn child; the isolated Roe exception, which is increasingly in conflict with the numerous laws of the states recognizing the rights of unborn children, must be overruled.”
Ecclesiastes 11:5 states, “As thou knowest not what is the way of the spirit, nor how the bones do grow in the womb of her that is with child, even so thou knowest not the works of God, who maketh all.”
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