Retired law professor Alan Dershowitz argued on Newsmax that the current abortion case before the Supreme Court is the wrong case to make a broad declaration on whether abortion is a constitutional right.
On Monday's "American Agenda," Dershowitz said: "Chief Justice Roberts is trying to persuade these justices to live by judicial restraint. ... He wants them to make a decision, saying that the Mississippi statute is constitutional."
If declared constitutional, the Mississippi statute being argued in the Dobbs v. Jackson Women's Health Organization case would ban all elective abortions after 15 weeks of pregnancy.
But Dershowitz argued that "the issue of Roe versus Wade has to await another case; a case where a state abolishes abortion completely. That case is not before the Supreme Court."
"So even if you believe that Roe versus Wade was wrongly decided: A, it's been on the books 50 years, and B, the issue of whether it's wrongly decided is simply not before the Supreme Court today; it would be judicial overreaching; it would be in violation of the constitutional requirement that the justices only rule on cases and controversies before them," Dershowitz added.
"So the right approach is to limit the decision only to the Mississippi statute, but they're not going to do that. According to the leaked opinion, they're going to engage in the same kind of overreaching that they accused the Supreme Court of doing in Roe versus Wade," Dershowitz said, referring to the Roe v. Wade 1973 ruling, which made elective abortion legal nationwide.
Dershowitz cites the ruling as an overreach because it was brought into law by a judicial body rather than a legislative one..
"If the Supreme Court simply decides this case and says, 'the Mississippi statute is constitutional — that it's constitutional to prohibit abortion after 15 weeks' — then the states would have to decide. Some states will say 'more than 15.'
''Some states will say 'no abortions at all.' That case will work its way into the Supreme Court. And if the justices are the same as they are today, probably there will be eventually a 5-to-4 decision overruling Roe versus Wade. But it should not happen now."
"If you're going to overrule such a 50-year precedent, it should be in a case that requires that decision to be made. This case simply doesn't require that decision to be made. It's not before them," Dershowitz stated.
The Supreme Court is expected to rule on the Dobbs v. Jackson abortion case this week.
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