Last week the U.S. Supreme Court began hearing arguments in the case of Dobbs v. Jackson Women’s Health Organization. This is the abortion case from Mississippi which is generating a lot of discussion around the water cooler these days. This case is important because it has the potential to kick abortion back to the states. Although Mississippi’s new law has been blocked by lower courts, a ruling by the U.S. Supreme Court could make it the new law of the land.

The right to abortion was established in 1973. In 1973 Roe v. Wade set as legal precedent a woman’s right to have an abortion so long as the procedure takes place before “fetal viability,” which occurs at 24 weeks of pregnancy. Fetal viability refers to the ability of a baby to live on its own outside of the womb.

The legal precedent of fetal viability was reaffirmed in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey. The nation’s highest court once again reaffirmed the legal precedent of fetal viability by recognizing “a woman’s right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State.” So, fetal viability has been the established standard ever since 1973.

Mississippi’s law is important because it poses a direct challenge to fetal viability. By banning abortions after 15 weeks of pregnancy, instead of 24 weeks of pregnancy, the Mississippi law is forcing the nation’s highest court to revisit the issue of fetal viability. For instance, in Roe v. Wade, the high court admitted in response to the question of whether life begins at conception that it was not in a good position to make any determination about when life begins: “When those trained in the respective fields of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

But speculation is precisely what the high court did! To make the determination that a fetus magically turns into a legally protected person at 24 weeks of pregnancy constitutes pure speculation on the part of the high court. To be sure, the high court never justified their conclusion that a fetus turns into a person protected by the 14th Amendment to the Constitution anywhere in Roe v. Wade. Instead, the justices simply concluded that the “compelling point is at viability.”

The argument made by the U.S. Supreme Court in Roe v. Wade was very weak. In order to show you how weak the high court’s ruling actually was consider this recent statement by Chief Justice John Roberts, who said that a 15-week ban is not a “dramatic departure from viability.”

One way of addressing this issue is by asking the following question, “Is a fetus a person at 24 weeks minus one second?” If the answer is yes, then it results in a further question of 24 weeks minus two seconds, and so on. However, if the answer to the first question is no, then it demands an explanation as to why a fetus at 24 weeks minus one second does not constitute a person, and there simply is no rational explanation. The high court’s ruling was arbitrary.

Because the high court’s ruling of fetal viability constitutes an arbitrary decision, the Mississippi law which outlawed abortions after 15 weeks is just as valid as the argument for fetal viability. For this reason, the U.S. Supreme Court has been presented with a golden opportunity to overturn Roe v. Wade and to give these decisions back to the states where they belong, that is, according to the tenth Amendment to the U.S. Constitution.