On Dec. 1, the pro-life movement’s best chance in nearly three decades of overturning Roe v. Wade and Planned Parenthood v. Casey will come before the Supreme Court. It is not at all clear what the court’s decision will be, but the case in question, Dobbs. v. Jackson Women’s Health Organization, will at least force the justices to revisit the court’s flawed abortion precedent and take a stand one way or the other.
The statute at issue in Dobbs is a Mississippi pro-life law that prohibits nearly all abortions after 15 weeks, with exceptions for medical emergencies or severe fetal abnormalities. The Jackson Women’s Health Organization sued the state over the law, and a federal district court and then the Fifth Circuit Court of Appeals sided with the abortion provider. The abortionists argued that the state’s law is unconstitutional under the precedents of Roe and Casey because the Casey ruling prevents states from banning pre-viability abortions, which is what the 15-week gestation marker would do.
When the Supreme Court agreed to hear the case, it said it would deal specifically with one question: whether all restrictions on pre-viability abortions are unconstitutional. This will leave the court no choice but to revisit its previous rulings in Roe and Casey that the lower courts cited as a justification for striking down Mississippi’s 15-week abortion ban. And it must choose to either roll back its past restrictions on abortion bans or expand them.
There’s still a good chance the justices choose to just chip away at the court’s past abortion precedent rather than overturn it altogether. Knowing Chief Justice John Roberts, this is a very likely outcome. But there are three new conservative justices on the bench, each of whom, I believe, finds Roe and Casey legally flawed and devoid of constitutional merit. (Indeed, there are many liberal legal scholars who, despite their personal beliefs on abortion, would agree with them).
This case will force our new justices to choose between their own judicial philosophies and abortion precedent that has no value at all outside of keeping the liberal mob happy. And if there’s one thing we know these conservative justices value, it’s the independence of the court and the ability to issue rulings in line with the constitutional text rather than the politics of the day.
Dobbs might make each of them into the next John Roberts, looking to split the difference. But I still hope, as does the rest of the pro-life movement, that this case will be a turning point for the Supreme Court and this country.
