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We may soon witness the undoing of Roe

Erin Hawley | The Supreme Court is set to revisit disastrous abortion rulings

Justice Amy Coney Barrett and Chief Justice John Roberts at the Supreme Court Associated Press/Photo by J. Scott Applewhite

We may soon witness the undoing of <em>Roe</em>
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Less than six months after Justice Amy Coney Barrett was sworn in as a justice on the Supreme Court of the United States, the Court agreed to hear Dobbs v. Jackson’s Women’s Health, a case set up to be the most important abortion decision since Roe v. Wade. It is essential to understand the facts of the case and Roe’s tangled history in America’s abortion regime.

In 1973, Roe infamously concocted a constitutional right to abortion out of thin air. That right is in no way derived from constitutional text, structure, or history. Yet in 1992, in a case called Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme reaffirmed that right. Together Roe and Casey impose a nationwide regime of elective abortions up until viability, or the point at which a baby can survive outside her mother’s womb, which is around 22 weeks.

Psalm 139 makes clear unborn life matters to God. It tells us that each child is fearfully and wonderfully made, knit together in his mother’s womb, and valued while as yet “unformed.” Meanwhile, Psalm 82:3-4 calls us as believers to “defend the defenseless, the fatherless and the forgotten.” No one is more defenseless than a pre-viability baby, and as Christians, we are compelled to defend unborn life. Yet while Roe and Casey stand, courts will continue to strike down states’ attempts to protect life before viability. In an act of judicial power, those decisions take from “We the People” the ability to protect unborn life—no matter what we believe or what science reveals about the dignity and humanity of unborn children.

The Dobbs case began in 2018 when Mississippi enacted the Gestational Age Act to protect unborn children after 15 weeks’ gestation. In addition to the state’s obvious interest in protecting unborn life, the state also explained its interest in protecting women from the physical and psychological risks of abortion, which dramatically increase as the pregnancy progresses. And the state highlighted its interest in protecting the integrity of the medical profession by preventing dilation and evacuation abortions—common after 15 weeks—which include “the use of surgical instruments to crush and tear the unborn child apart before removing the pieces of the dead child from the womb.”

In particular, the Mississippi legislature found that scientific knowledge regarding fetal development supported the Gestational Age Act. As the legislature explained, by 15 weeks, a baby has a heartbeat, can move and kick, respond to stimuli outside her mother’s womb, open and close her fingers, and hiccup. Her eyes are beginning to open, she is starting to make sucking motions, and recent scientific evidence suggests that she may be able to feel pain.

An abortion clinic, Jackson Women’s Health Organization, filed suit against Mississippi. It argued that Supreme Court precedent, including Roe v. Wade, did not allow states to significantly limit pre-viability abortions—regardless of the state’s interest in unborn life. The district judge agreed, holding that any pre-viability protection for unborn life is unconstitutional under Roe and its progeny. The Fifth Circuit also agreed.

Then, things get interesting. The Supreme Court easily could have declined review in Dobbs. Because of Roe and Casey, the lower courts have uniformly held that a state may not protect women or their children from the harms of abortion before viability. And as Mississippi acknowledges, 15 weeks is well before viability. Given the absence of any confusion among the lower courts, there was no reason for the Supreme Court to take the case. That is, unless the Court is finally prepared to overrule (or at least limit) Roe.

Accordingly, the Supreme Court’s decision to take the Dobbs case sent shockwaves through the legal community. For nearly 50 years, states have been restricted from protecting unborn life before viability. Yet in Dobbs, the Court agreed to review whether “all pre-viability prohibitions on elective abortions are unconstitutional.” And given that there is no lower court split of authority on the question, the grant of review signals that the Supreme Court thinks that answer might be no.

As well it should be. Nothing in the text, structure, or history of the Constitution establishes a right to an abortion. Dobbs is a critical case because the justices seem poised to hold that a state may protect unborn life well before viability—a meaningful limitation of the Court’s abortion cases. Further, Dobbs involves the prior question of what standard should apply to review an abortion prohibition. And that question raises the possibility that the Court could finally hold the Constitution does not include a right to an abortion, returning that issue to the states.

Thankfully, the days of Roe v. Wade may finally be numbered.

Editor’s note: The author works for Alliance Defending Freedom, which has worked closely with the State of Mississippi throughout the defense of this law, including overseeing the amicus coordination effort in support of this case before the Supreme Court.

Erin Hawley

Erin Hawley is a wife, mom of three, senior counsel at Alliance Defending Freedom, and former law professor.


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