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Judicial Crisis Network President: The Constitution Dictates Abortion Should be Left to States

AP Photo/Steve Helber

On Fox News’ “Sunday Night in America,” host Trey Gowdy invited Judicial Crisis Network President Carrie Severino to discuss two Supreme Court cases surrounding S.B. 8, Texas’ law that bans abortion after fetal heartbeat detection.


In the segment Severino spoke on the oral arguments that took place on Nov. 1 for the cases Whole Woman’s Health v. Jackson and United States v. Texas. The latter is the Department of Justice’s (DOJ) lawsuit against Texas over the law.

"People are talking about this case as if it’s going right to the heart of Roe v. Wade,” Severino said in the interview. “We actually have a case on the docket [Dobbs vs. Jackson Women’s Health Organization] that’s going to do that, but that’s not argued until December. This case was really about some procedural issues that are very unique to the way that the Texas law is structured.”

In addition to outlawing abortions around six weeks gestation, S.B. 8 allows citizens to pursue legal action against anyone who provides an illegal abortion or “aids or abets” someone seeking an illegal abortion. Those who successfully bring lawsuits under S.B. 8 can receive $10,000.

Severino continued, saying that the hearings in this particular case would not directly affect Roe. The upcoming Dobbs case, which asks the Supreme Court to overturn Roe and Planned Parenthood v. Casey, surrounds the constitutionality of a 2018 15-week abortion ban in Mississippi. 


“Obviously, judges shouldn’t be looking at the policy issues ever, but that all of the discussion of this abortion issue doesn’t distract them from just applying the regular standards that apply to every case that comes before the Supreme Court in the question of who can bring the lawsuit and who do they have to sue,” Severino explained.

Severino continued, saying that laws in regards to abortion should be left to the states since the Constitution does not “say anything about it, one way or the other.”

"In the case of abortion, it is a little bit different. The state is not saying we’re going to perform the abortion in this case. They’re simply saying can this law stand. And, as Justice Scalia himself said, a lot it is not about whether I believe in abortion or not. It’s about if the Constitution talks about abortion. And in this case, the Constitution doesn’t say anything about it one way or the other – which means it’s left to the states," she said.

“If they don’t weigh in on that core question, we’re going to keep on having cases,” Severino concluded. “Whether it’s from Texas, from Arkansas, from Kentucky, we have all these cases in line testing other aspects of it. So there’s no way for them to get away from dealing with the real underlying question – which is not what do you think about abortion. That’s something for the legislature. It’s is abortion, really, in the text of the Constitution itself. And if not, then why are we as judges making these calls and why don’t we leave it to the Americans’ representatives?”


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