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Perhaps the Beginning of the End of ‘Roe’

On the other hand, the decision in 'Dobbs' could put the pro-life movement’s legal strategy in the trash.

The moment every progressive has feared since Ruth Bader Ginsburg died last year has come: The Supreme Court has agreed to hear an abortion case. Abortion organizations have their fundraising engines roaring with warnings that Roe could fall; MSNBC’s Joy Reid speculated that The Handmaid’s Tale is just around the corner; abortion activists are already establishing networks and funds for feticide in states where abortion could presumably soon be illegal. But what is the likelihood of Roe actually being overturned?

The Supreme Court has agreed to hear Dobbs v. Jackson Women’s Health Organization, which will take up the question of the constitutionality of a 2018 Mississippi state law that bans abortions after the first 15 weeks of pregnancy. The case will be heard during the 2021-22 Supreme Court term. Up until now, the Supreme Court has consistently avoided addressing the so-called “viability rule” of both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

Despite the new conservative majority, many veteran pro-life leaders suspect that the Court will only hollow out Roe further rather than actually overturn the landmark decision, although others are cautiously optimistic. Chief Justice John Roberts, whose wife once worked with a pro-life organization, was seen at his appointment as a reliable anti-Roe vote; his erratic record since makes his position uncertain. While there are positive indicators, nobody is sure how Gorsuch and Kavanaugh will vote, although the latter may have been radicalized by his treatment at confirmation.

Clarke Forsythe, senior counsel at Americans United for Life and author of the seminal work Abuse of Discretion: The Inside Story of Roe v. Wade, told me that it is a positive sign that the Supreme Court agreed to hear Dobbs v. Jackson Women’s Health Organization rather than a lesser case dealing with a peripheral issue such as parental notification. That said, Forsythe does not expect Roe to be overturned.

“Pro-life people should have modest expectations because of the ‘Question Presented’ and accepted by the Justices to decide: ‘whether all pre-viability prohibitions on elective abortions are unconstitutional,’” he told me. “That is, frankly, a modest question, an ‘incremental’ question. However, it is certainly a bigger question than merely dealing with a parental notice of abortion statute, which is involved in another case from Indiana pending at the Court.”

Forsythe believes the possible outcomes are thus limited. “The viability rule that the Court created in Roe and reaffirmed in Casey says that the States don’t have a ‘strong enough’ interest before fetal viability to prohibit abortion,” he explained:

Scholars on both sides have agreed that the Court has never offered an adequate rationale for the viability rule. But some lower courts have called the rule “categorical” (allowing no prohibition for any abortion at any time before viability) and the viability rule has been used by some lower federal courts to invalidate 20-week limits on abortion or several other gestational limits passed by the States over the past several years.

This, says Forsythe, would be a big step forward—and could potentially allow states to ban abortion even before 15 weeks. “I have long thought that knocking out the viability (through a test case with gestational limits like 20 weeks) was an important step to overturning Roe. Here the QP is phrased generally and sidesteps fifteen weeks or any specific gestational line.”

Dobbs v. Jackson Women’s Health Organization could turn out to be inconsequential, or it could tell us much about the future of the abortion debate in America. The justices, Forsythe noted, could take out the viability standard; “reverse the decision below and send it back to the lower court for ‘further proceedings’”; simply uphold the 15-week limit; or, in the worst-case scenario, rule in such a way that indicates the conservative majority is unwilling to either limit or overturn Roe. With that outcome, the pro-life movement’s legal strategy would need a fundamental overhaul from the ground up. The three liberals can be counted on to support Roe and Casey and rule with the abortion industry; Justice Clarence Thomas is the only conservative justice to have explicitly stated his support for overturning those decisions.

“There are examples in the past of overruling decision that have been done in two or three steps,” Forsythe told me:

Given the majority on the Court, and the many cases in the pipeline, some of the six “conservatives” may be thinking about a two or three step path to overruling—to cut back in Dobbs and address another case in 2023 or 2024. The [pro-life movement] needs to continue to push its work on all fronts, including pressure through state legislation, court cases, and in politics. The states need to continue pushing with legislation that instigates cases in the courts.

Whether Roe falls in the decade depends on many factors, but Forsythe sees reason for optimism. “We have the best majority on the Court since Roe in 1973 and maybe longer, and forty-plus cases in the pipeline, so there are many opportunities for the Court to address the abortion issue,” he explained. “Those two conditions are the best since Roe. Of course, a lot of people speculate on what Chief Justice Roberts will ultimately do. For that reason, Justice Barrett’s confirmation was critical. If she joins with Thomas, Alito, Gorsuch, and Kavanaugh to produce five on any legal judgement, will those five ‘pull’ Roberts ‘over the goal line’?”

“Of course, abortion advocates are well-funded and are desperate to head off any cutting back of Roe and Casey,” he warned:

If they savaged Justice Kavanaugh and his family in the 2018 confirmation hearings, virtually anything is possible. It may well give momentum to the court-packing bill introduced in the House and Senate. Pro-abortion advocates can only see this as a bad sign. If Kennedy and Ginsburg were on the Court, the Court would never take this case, because both were supporters of Casey and the viability rule. The additions of Justices Kavanaugh and Barrett changed the balance on the Court to hear this case.

While the educational arm of the pro-life movement has been shoring up public opinion on the issue, the political and legal arm has been maneuvering towards this moment for years. If the Supreme Court rewards these efforts, the end of Roe could finally be in sight. If the newly conservative Court repudiates them, the pro-life movement’s legal strategy will be in the trash. In short, Dobbs v. Jackson Women’s Health Organization is unlikely to give the pro-life movement what they have been seeking for decades, but if the Court knocks down the viability standard, it will be an enormous step forward—perhaps even the beginning of the end.

Jonathon Van Maren is a public speaker, writer, and pro-life activist. His commentary has appeared in National Review, The European Conservative, the National Post, and elsewhere. Jonathon is the author of The Culture War and Seeing Is Believing: Why Our Culture Must Face the Victims of Abortion as well as the co-author with Blaise Alleyne of A Guide to Discussing Assisted Suicide.