Last Updated Aug 5th, 2020 at 11:36 am

Amid the many legal questions arising out of the Coronavirus pandemic, the Supreme Court has been asked to take up the question of abortion access. The Fifth Circuit has correctly held that the Texas order is not a total ban. Further, the majority recognized that abortions are elective nonessential medical interventions, the personnel risk is unnecessary, and PPE equipment needed to provide abortions during the pandemic is needed elsewhere.

If the High Court decides to hear the case, it is not bound by prior precedent. Although Planned Parenthood v. Casey (1992) held that the government could not "unduly burden" abortion access, states are in a very different position with respect to a compelling interest and non-emergent, elective medical procedures during a national health safety emergency.

Here, Planned Parenthood argues the same false premise that it has been selling since Roe v. Wade (1973), that abortions are somehow a woman's "right." But even the Roe Court did not make any such finding. There is no constitutional "right" to abortion. Roe held that the government has a compelling interest in protecting life, but that its compelling interest must be balanced against a woman's right to privacy.

Using privacy as a thin veneer, the Roe Court held that women may access some abortions in some circumstances, and thus created a balancing test. That test would later evolve through Casey, where the Court established an "undue burden" test for abortion restrictions.

This new case now pending before the Supreme Court could prove to be pivotal in helping to reshape abortion law in the United States. If the Court affirms that abortions are what they actually are—medically unnecessary interventions that are intended specifically to cause the death of the child—then Casey's question of "undue burden" is ripe for overturning.

Why should the government be limited in restricting a medically unnecessary and entirely elective procedure when it has a compelling state interest in protecting life?

The Supreme Court has recognized since 1905 in Jacobson v. Massachusetts the right of patients to make medical treatment decisions, except where the government has a compelling state interest. The case law since then does have some doctrinal confusion, which interestingly perfectly parallels the constitutional crisis the pandemic has created in a more general sense—the tension between individual autonomy for decision-making and the public health doctrine that establishes and emphasizes the state's police power to regulate restrictions.

The new case arising out of Texas would also interest the Supreme Court in clearing that confusion, and also in establishing definitive precedent on the tension between rights of the individual and police power of government to advance a compelling state interest amid a public health crisis.

As I have previously argued, the tension here is complex, and we do need to be careful how we advocate for the delicate balance between liberty and government restrictions. The answer as to elective abortion services is patently distinguished from the constitutionally enshrined fundamental right to free exercise of religion.

But Supreme Court does not need to hold a one-rule-fits-all approach in its doctrine. It is not inconsistent, for example, for the Court to find that the government is advancing its compelling state interest in restricting elective abortion access for precisely the same reasons the 5th Circuit determined, but is not advancing that state interest in restricting drive-up church services.

Further, with the advances in medical science since Roe was decided, the government has a much stronger argument in an ongoing compelling interest in the life of the child from conception or at minimum fetal heartbeat.

Will the Supreme Court take this opportunity to finally render an opinion consistent with the U.S. Constitution on the sanctity of human life?

Hopefully with the originalist, conservative majority now on the Supreme Court thanks to President Donald Trump, we will see that balance and our legal precedent protect life and liberty in America for generations to come. That is, after all, precisely what the U.S. Constitution requires.

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Jenna Ellis is a constitutional law attorney, the senior legal adviser to the Trump 2020 Campaign, and fellow at Falkirk Center at Liberty University. She is an attorney to President Trump and the author of "The Legal Basis for a Moral Constitution."