In the wake of the Supreme Court’s monumental decision to hear Dobbs vs. Jackson Women’s Health Organization, a case that will examine the constitutionality of Mississippi’s 15-week abortion ban and has the potential to overturn Roe v. Wade, Dr. Steve Jacobs responds by publishing a piece in Newsweek.
In it, he explores the possible objections to Roe v. Wade, including his central argument that the Court should follow the precedent of Brown v. Board of Education. “Where Roe obviously failed to end the national controversy on abortion, Brown practically flipped Americans’ opinions overnight and set the nation on a path toward complete rejection of segregation.” Dr. Jacobs explains.
This was so because the Court admitted that its previous precedent, in 1896’s Plessy v. Ferguson, “was so clearly at odds with the facts apparent to the Court in 1954 that the decision to reexamine Plessy was on this ground alone not only justified but required.” He uses this to then claim that Court in Dobbs “will once again have to consider whether the ‘facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application.’”
In his recent article for the Tennessee Law Review, Dr. Jacobs lays out two reasons why the Supreme Court may come to realize that the facts have changed. The first reason is that while “[t]he Court in Roe recognized that states have an ‘important and legitimate’ interest in protecting life, ” the Court was “uncertain” whether life began at conception so it selected viability as an arbitrary dividing line. Today, however, the fact that life begins at conception is scientifically proven.
In 2019, Dr. Jacobs released a study that proved this point. 96% of 5,577 biologists around the world affirm that life undoubtedly begins at conception. Even though 85% of these biologists identify as “pro-choice,” they don’t deny the truth that human life really does begin at conception.
The second reason the courts may find that the facts have changed is that “[t]he Roe Court suggested that ‘the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth.’”
Today, Dr. Jacobs identifies at least eight different instances where the states do indeed protect life before birth. For example, a majority of states have fetal homicide laws that charge people with homicide and murder if they cause a woman to lose her pregnancy and her preborn child, from fertilization until birth.
Dr. Jacobs essentially argues that supporters of abortion who claim we should follow precedent are merely focusing on the wrong precedent. While Roe’s viability standard was based on the Court’s uncertainty on when life begins and states’ reluctance to protect preborn humans, Brown stands for the fundamental principle that courts must update a holding when new information shows that the holding was based on outdated, incorrect information.
“The Court should follow the science and the precedent of Brown,” Dr. Jacobs claims. “It should finally overturn its incorrect, obsolete viability standard and stop infringing on states’ 10th Amendment right, and 14th Amendment duty, to protect all humans throughout their lives, from fertilization until natural death.”