Let’s pick up where we left off four weeks ago.

Speaking at Notre Dame on Sept. 16, United States Supreme Court Justice Clarence Thomas was asked to name the greatest threat to the judiciary.

Thomas said some people expect too much from it, in part by asking it to solve questions that aren’t courts’ business.

A significant misconception of the judiciary – particularly in the press – is that it makes policy, Thomas said. Some think judges are like politicians.

Thus, in constitutional challenges – such as Dobbs v. Jackson Women’s Health Organization, which the high court will hear on Dec. 1 – one asks: Does the Constitution speak to the questions that the challenges present?

At issue in Dobbs is the constitutionality of Mississippi law restricting something that begins with “A” and which Thomas has said is the big issue during Supreme Court confirmation hearings.

If you’re not sure what the “A” word is, please keep reading.

If you are sure, please keep reading anyway.

The Dobbs parties agree that the question presented is whether all restrictions on “A” are unconstitutional pre-viability.

A broader question that the court needn’t reach in Dobbs is: To what extent does the Constitution speak not just to the question presented but to “A” in general?

In assessing the constitutionality of any law restricting “A,” it’s important not to confound – as some people, including many in the press, do – two issues. The first issue is the extent to which, as a matter of anyone’s policy preferences or as a matter of public opinion, “A” should be legal. The second issue is the extent to which government, under the Constitution, may restrict “A.”

Those are separate issues. The Constitution doesn’t mandate anyone’s policy preferences. Nor does the Constitution depend on public-opinion polls. If it did, Brown v. Board of Education may well have – wrongly – come out the other way.

The introduction in Mississippi’s brief gets right to Mississippi’s point and takes on two Supreme Court decisions: Roe v. Wade from 1973 and Casey v. Planned Parenthood from 1992.

To put it much too simply, Casey reaches a result similar to Roe’s while replacing Roe’s trimester-based reasoning with Casey’s undue-burden-based reasoning.

If you’re still not sure what the “A” word is, please read the next paragraph.

With Roe and Casey in mind, here’s the essence of Mississippi’s point: “On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight. Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion,” Mississippi asserts. “Both courts below understood Roe and Casey to require them to strike down Mississippi’s Gestational Age Act because it prohibits (with exceptions for life and health) abortion after 15 weeks’ gestation and thus before viability. Roe and Casey are thus at odds with the straightforward, constitutionally grounded answer to the question presented. So the question becomes whether this Court should overrule those decisions. It should.”

The challengers disagree: “Mississippi now asks the Court … to overrule Casey and Roe in their entirety, or ‘at least’ to discard the viability line,” the challengers assert. “Nothing in the years since Casey was decided has rendered individuals’ rights to make basic decisions about their bodies and their lives any less worthy of constitutional protection. To the contrary, two generations – spanning almost five decades – have come to depend on the availability of legal abortion, and the right to make this decision has been further cemented … .”

Watch for this opinion.

Dr. Randy Elf’s most recent U.S. Supreme Court brief is at https://works.bepress.com/elf/30

COPYRIGHT ç 2021 BY RANDY ELF