A watershed decision in the abortion battle

Will the U.S. Supreme Court send Roe gently down the stream? A leaked draft opinion suggests yes, but rougher waters lay ahead.

A foretaste of those hounds was unleashed just a few weeks later, after Politico media obtained and publicized a draft opinion on Dobbs v. Jackson Women’s Health Organization, the highly anticipated U.S. Supreme Court decision expected to be handed down early this summer, that would reverse Roe v. Wade, the 1973 decision that legalized abortion.

The draft opinion, written by Justice Samuel A. Alito Jr., indicated at least a five-justice majority voting to overturn Roe — news that cheered pro-life supporters even as the hellish hounds went into attack mode.

“If the draft opinion made public tonight is the final opinion of the court, we wholeheartedly applaud the decision,” said Dannenfelser, a Legate of the Northern Virginia Chapter, in a statement on behalf of the SBA List following the Politico leak on May 2.

Meanwhile, abortion advocates from President Joe Biden and Vice President Kamala Harris on down decried the court’s draft opinion. Senate Democrats brought to vote legislation to codify Roe v. Wade nationally, a vote they knew was doomed to fail. And radical pro-abortion groups began picketing the homes of conservative Supreme Court justices, vandalizing several pro-life pregnancy centers and Catholic churches, and staging protests or disrupting weekend Masses at Catholic churches in a number of cities. One demonstration, at Old St. Patrick’s Cathedral in New York, featured a protester simulating her abortion with baby dolls.

Chief Justice John Roberts decried the leak as “absolutely appalling” and called for an investigation, while Justice Clarence Thomas assured conference attendees in Atlanta that the Supreme Court “can’t be an institution that can be bullied into giving you the outcomes you want.”

A SHIFT TO THE STATES

While the wording of the majority opinion could change before it is finalized, both sides generally expect that Roe will indeed be overturned. While that in itself would not ban abortions nationwide, it would shift the decision of abortion’s legality and regulation to individual states. About half the states are expected to ban elective abortion, while the rest will keep abortion legal to a greater or lesser degree.

Dobbs is one of the most carefully watched cases in decades by activists on both sides of the abortion debate. At issue is the constitutionality of a 2018 Mississippi state law (HB 1510) protecting the unborn child from abortion after the first 15 weeks of pregnancy (with exceptions for medical emergencies and severe fetal abnormalities). Oral arguments before the Court were held in December 2021.

Lower courts have ruled the law unconstitutional. In its appeal, the State of Mississippi has asked the Court not only to uphold HB 1510 but also to overrule Roe, which asserted a constitutional right to abortion.

“Roe was egregiously wrong from the start,” states the leaked draft opinion, before going on to state plainly that both Roe and Planned Parenthood v. Casey, a 1992 decision that upheld Roe, “must be overruled.”

AN ARBITRARY ‘DIVIDING LINE'

Overruling Roe is a long time coming. In December oral arguments, Chief Justice John Roberts noted that U.S. abortion law is among the most extreme in the world. Most countries prohibit abortion after 15-20 weeks, whereas in the U.S. abortions can legally occur up until birth under Roe.

Attorney Thomas Olp of the Thomas More Society in Chicago notes that under current law Roe offers the “dividing line” when states can and cannot restrict abortion as viability, or when the unborn child can exist outside the mother’s womb, which today is designated at 22-24 weeks. He speculated that the Supreme Court would not have opted to take the Dobbs case “unless they were interested in eliminating the viability line. If they do, you’re essentially pushing the abortion issue back to the states [to legislate], which has been the conservative view all along.”

The Society filed an amicus curiae brief with the Court arguing the “viability line” adopted by the Court in Roe is irrational, as modern science has revealed that at conception an organism with a unique DNA comes into existence.

Further complicating the issue is that states have already passed laws recognizing the rights of the unborn child, Olp said, such as laws which declare if a pregnant woman is murdered and her unborn child dies along with her. “You can be prosecuted for two crimes,” he said. “It doesn’t depend on the viability of either."

Should Dobbs result in the overturning of Roe, Olp believes, it will lead to “contentious fights” in state legislatures. In fact, he noted, the pro-abortion lobby is “in a panic” in anticipation of Roe’s overturning. To counter this strong possibility, states with strong legislative pro-abortion majorities, such as New York, California, Vermont, Rhode Island, and New Jersey, are already attempting to use state legislation and state constitutional appeals to enshrine abortion into law.

FINALLY, A ‘FULL DISCUSSION’

Catherine Glenn Foster of Americans United for Life describes Dobbs as “the most critical abortion case since Roe.” One thing that struck her during oral argument, she said, “was that for the first time in 50 years we saw a full discussion of abortion by the Court — a discussion that we should have been allowed to have over the past 50 years.”

Dannenfelser sees the panic on the pro-abortion side as it prepares to “circumvent and do an end run around [anti-abortion] laws they see coming.” Chief among these are the expanded use of chemical abortion pills and the creation of pro-abortion “sanctuary states,” such as in California, where abortion-seeking women can be flown in from other states to have abortions.

She sees the “hand of God” in the appointment of new Supreme Court justices during the Trump administration and the “grace of God” in having the Dobbs case arise “which tests Roe and could lead to the saving of millions of lives.”

A pro-life America will be a more religious America, Dannenfelser believes. Overturning Roe should lead to greater protection of the unborn and “will have a tremendous impact,” she said. “When we get this right, it can be a gateway to many more conversions and changes in the culture.”