The Dispatch: More from CWR...

How solid is the prolife majority on the Supreme Court?

Although victory for the prolife cause may now be a real possibility, so may something far short of that.


When thousands of prolifers turn out for the annual March for Life in Washington on January 18, four days before the 46th anniversary of the Supreme Court decision legalizing abortion, many will march with a sense of victory in sight—a new ruling overturning or at least mitigating that earlier decision.

They may be right. But cooler heads would counsel adding a dash or two of uncertainty to the mix. For although victory for the prolife cause may now be a real possibility, so may something far short of that.

Consider how things stand at the Supreme Court. The confirmation of Justice Brett Kavanaugh was said to have signaled a new five-member prolife majority there. And perhaps it did. But Kavanaugh—along with Chief Justice John Roberts—lately joined the court’s four-member liberal bloc in refusing to review lower court decisions allowing individual patients to challenge their states’ exclusion of Planned Parenthood as a Medicaid provider.

Granted, rather than abortion, a somewhat convoluted question of legislative interpretation was the direct issue in these cases. But the media quickly, and correctly, hailed the result as a victory for Planned Parenthood, the country’s largest abortion provider. Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, may have been all too right when he said in dissent that his colleagues’ refusal to look at the cases arose from “the fact that some of the respondents…are named ‘Planned Parenthood.’”

All of which was a disturbing reminder that Chief Justice Roberts has a well honed respect for legal precedent while Justice Kavanaugh during his confirmation fight declared the 1973 abortion decision Roe v. Wade to be “settled law.”

The Supreme Court will of course have other opportunities to declare its position on legal protection for the unborn. Among them is a case from Indiana, Box v. Planned Parenthood of Indiana and Kentucky, involving a state law which requires that the remains of aborted fetuses be buried or cremated instead of disposed of as medical waste. The law also bars abortions performed solely on account of race, sex, or fetal disability.

A three-judge panel of the 7th Circuit U.S. Court of Appeals split 2-1 in overturning the fetal remains provision and unanimously rejected the non-discrimination provision.

In asking the Supreme Court to consider the case, Indiana says the underlying premise of the fetal remains requirement is that “an aborted or miscarried fetus is nothing less than the remains of a partially gestated human and should be treated with the same dignity.” Although that stops far short of saying the unborn are persons with a constitutionally protected right to life—something the court refused to do in Roe v. Wade—it would at least be a step in the right direction.

Eighteen states with laws similar to Indiana’s have joined in asking the Supreme Court to consider the case.

Meanwhile uncertainty regarding how things stand with the Supreme Court shot sky high shortly before Christmas at the news that Justice Ruth Bader Ginsburg had two cancerous growths removed from her left lung. This was the third time Ginsburg, at 85 the court’s senior liberal justice, has been treated for cancer.

If she can, Ginsburg clearly will hang onto her seat on the Supreme Court until there is a Democrat in the White House to name her successor. President Trump is committed to appointing only prolifers. So far he has named two—Gorsuch and Kavanaugh. Whether the Senate would confirm a third Trump pick is simply unknowable.

Talk about uncertainty!

If you value the news and views Catholic World Report provides, please consider donating to support our efforts. Your contribution will help us continue to make CWR available to all readers worldwide for free, without a subscription. Thank you for your generosity!

Click here for more information on donating to CWR. Click here to sign up for our newsletter.

About Russell Shaw 262 Articles
Russell Shaw was secretary for public affairs of the National Conference of Catholic Bishops/United States Catholic Conference from 1969 to 1987. He is the author of 20 books, including Nothing to Hide, American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America, Eight Popes and the Crisis of Modernity, and, most recently, The Life of Jesus Christ (Our Sunday Visitor, 2021).


  1. “President Trump is committed to appointing only prolifers. So far he has named two— Gorsuch and Kavanaugh”. If Trump could maneuver such appointments he would be a miracle maker. Vetting a true pro-lifer is not easy. Kavanaugh said Roe was “settled law”. I think that the Catholic Church misses the mark when the do not clearly define that they object to abortion for any reason. They may be enamored with Trump, but he is no true pro-lifer. He is wolf in sheep’s clothing.

    • “Since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law…” (Catechism, 2271).

      Countless similar remarks by Doctors, Popes, and other Catholics could be added. It’s very clear.

      As for Trump, in terms of concretely supporting pro-life work and initiatives, he’s done far more many other GOP types who have talked and talked and talked … and done little more. One need not adulate the man or ignore his flaws in order to recognize what he has done for good.

      • Agreed. The President has opened the door for true pro-life rulings to be made. The Catholic Church should step up and become more adamantly vocal at all levels in responding to this support and taking it for what it is…a chance to do what is right in the middle of a culture that is so often wrong. At a time when the Church in America is reeling this would be the opportunity to make the statement that they do believe in Life and in the teachings of the Church in these and the related areas and that they support the judiciary when they have the nerve to do the same.

    • MorganB,
      I don’t know how pro-life Trump is, but he’s fostered very close ties with pro-life evangelicals. I suspect he’ll continue to seek their influence and support.

      Regarding Kavanaugh’s “settled law” quote, I consider this to be dubious. Roe vs. Wade is settled law for a judge. It’s not necessarily settled law for a justice.

  2. It certainly looks like the last appointed Supreme Court pick by the great President, is not all the President thought he was… And why he was chosen. God bless Donald Trump President of the USA who tries his best, all of the time to help his country… And even more importantly to help the unborn….

1 Trackback / Pingback

  1. How solid is the prolife majority on the Supreme Court? -

Leave a Reply

Your email address will not be published.

All comments posted at Catholic World Report are moderated. While vigorous debate is welcome and encouraged, please note that in the interest of maintaining a civilized and helpful level of discussion, comments containing obscene language or personal attacks—or those that are deemed by the editors to be needlessly combative or inflammatory—will not be published. Thank you.