January 2023 will mark the 50th year since the Supreme Court’s infamous Roe v. Wade decision struck down state laws prohibiting pre-viability abortion, thereby authorizing the legal killing of unborn children nationwide.
Nearly 20 years later, in Planned Parenthood v. Casey—a case many expected might overturn Roe—the Court reaffirmed the earlier decision: individual states “may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability” but can enact restrictions that do not present an “undue burden” on a woman seeking an abortion.
Opportunity
Here we are again, on the precipice of another landmark decision, and it’s possible that by Roe’s anniversary next year, the Supreme Court will have substantially shifted abortion jurisprudence by returning the question to the states.
All eyes are on Dobbs v. Jackson Women’s Health, a Mississippi abortion case that asks: Are all pre-viability prohibitions on elective abortions unconstitutional? In other words, can Mississippi ban nearly all abortions after the unborn child has reached 15 weeks of gestation?
The gambit is a bold one. The Mississippi law has been taken to the Court in the hope that the now-conservative majority will not abandon their originalist or textualist judicial philosophies on a key case.
Pro-life advocates often feel like Charlie Brown with Lucy and the football. Disappointed repeatedly by the courts, Americans who believe in the humanity of the unborn have channeled their efforts into changing public opinion, helping women in distress, and caring for families. But could the legal outcome this time be different? Could this be the case that reverses Roe and Casey?
Middle Ground?
John McGinnis believes the Court might look for a middle way to uphold the Mississippi statute by rationally restructuring the Casey decision so that the “undue burden” requirement is satisfied by a 15-week window for seeking an abortion.
That’s possible, but the result would still be an overturning of Roe v. Wade (by moving away from “viability” altogether). And there’s reason to be optimistic that the Court will be bolder in its reasoning.
In the oral arguments, Justice Gorsuch implied that there was no middle ground between reversing Roe and Casey and reaffirming them against Mississippi.
Chief Justice John Roberts asked questions that indicated his search for a way of voting in favor of Mississippi’s law without necessarily overturning Roe. But if he and the other justices were to seek this path, they’d have to substitute a new line in place of viability. And where, in the law, would that line be found?
Sherif Girgis in The Washington Post explains why this case sets up such a dilemma:
The justices will confront the reality that there is then no intellectually honest way for them to uphold the Mississippi law without overruling Roe v. Wade. . . . Upholding the Mississippi law without overruling the court’s previous abortion cases would lack support in any legal source, send even more abortion cases to the court and curb the justices’ ability to overrule Roe down the road.
Roe on Defense
From the opening lines of Scott Stewart in the oral argument—“Roe v. Wade and Planned Parenthood v. Casey haunt our country”—it was clear that this case was a direct attack on the legal precedents upholding abortion.
The oral arguments in the Dobbs case at one point centered on whether a ruling’s egregious wrongness can justify its overruling, using Plessy v. Ferguson (which upheld racial segregation) as an example, forcing the solicitor general to imply that even in that case, “materially changed circumstances” are required before precedent can be overruled. Anytime you’re arguing in a way that puts you on the side of Plessy, things aren’t going well, and that’s where the defense of Roe wound up.
Even abortion advocates have criticized Roe v. Wade, including the late Justice Ruth Bader Ginsburg. Consider a recent article in the Harvard Journal of Law & Public Policy:
“As a matter of the Constitution’s text and history, it is no secret that Roe is not just wrong but grievously so. Roe was roundly criticized as wrong the day it was decided, and it has been robustly opposed both within and outside the Court ever since. No sitting Justice has defended the merits of its actual reasoning.”
What’s Next?
If Roe v. Wade is overturned and the question of abortion returns to the states, then those of us who believe in the sanctity of all human life will find the landscape both changed and unchanged. Several states are likely to ban all abortions, but other states will reinforce abortion rights and easier abortion access.
Our work won’t be done; it will be only the beginning of a new phase in the movement to protect all human life. We will continue to care for families in need, persuade our friends and neighbors to support life-affirming legislation, and hold officials accountable to their vow to protect the most vulnerable among us.
Roe may not make it to 50. But the pro-life movement will (and must) stretch beyond next year’s sad anniversary.
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