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End of the line for Roe v. Wade?

When the decision in Dobbs v. Jackson Women’s Health Organization is handed down, probably next spring or early summer, it will do one of three things

(Image: Steven Frame/Shutterstock)

Starting December 1, the nine justices of the Supreme Court will begin work in earnest on what already looks to be the court’s most closely watched—and probably most controversial—ruling in nearly half a century.

When the decision in Dobbs v. Jackson Women’s Health Organization is handed down, probably next spring or early summer, it will do one of three things: either overturn Roe v. Wade, the 1973 ruling that legalized abortion, together with Planned Parenthood v. Casey, the 1992 decision affirming the central holding of Roe; or else permit individual states to impose meaningful restrictions on abortion, though without reversing Roe and Casey entirely; or else, heaven forbid, deliver a bitter setback to the prolife movement by permitting death-dealing Roe/Casey regime of abortion on demand to remain in place.

December 1 is the date set by the court for oral arguments in Dobbs. The case comes from Mississippi and concerns a law enacted in 2018 that bars abortions after the 15th week of pregnancy except in cases of medical emergency or severe fetal abnormality. Lower courts have ruled against this law as a violation of Roe.

The intense interest in the new case has already generated a virtual tsunami of pre-argument commentary. Much of it, coming from the pro-abortion side, has adopted a remarkably vituperative tone and apparently been designed to intimidate prolife members of the Supreme Court. Further heightening the tension was the hubbub accompanying the Texas “heartbeat” law argued before the court November 1. The Texas law bans abortions after the point at which a fetal heartbeat becomes detectable—usually, the fifth week of pregnancy.

Up to now, the Supreme Court has been asked to consider only procedural issues concerning the Texas law rather than the central question: Is it constitutional? Some abortion providers are seeking the court’s green light to bring suit against the law even before it is enforced against them. And the Justice Department, taking its cue from President Biden’s declaration that the law is an “unprecedented assault” on the right to kill the unborn, wants authorization to sue the state.

Whatever the Supreme Court does about these matters, lower court battles over the Texas law’s constitutionality come next. Besides Texas, several other states are already in line—and more are on the way–asking the Supreme Court to say yea or nay to their laws restricting abortion. But Dobbs will be first, and the Supreme Court most likely will keep Texas and the others waiting until it has established new legal ground rules in deciding that case.

Guessing how individual justices will vote is risky. But with that qualifier, a pattern seems clear enough. Three—Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan—are certain pro-abortion votes. Three others are good bets to favor overturning Roe/Casey—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.

That leaves three—Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett. All are pro-life, but one or more of them might favor some modification of Roe over outright reversal. Give it six months or so, and we’ll find out.

Meantime a line from an amicus curiae brief—one of many submitted in the Dobbs case—sticks in memory. Recognizing the personhood of the unborn, say legal scholars John Finnis of Oxford and Notre Dame and Robert George of Princeton, would not require “unusual judicial remedies” but would simply “restore protections deeply planted in law until their uprooting in Roe.”

Are you listening, Chief Justice Roberts and Justices Kavanaugh and Barrett?


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About Russell Shaw 239 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, and, most recently, Eight Popes and the Crisis of Modernity.

5 Comments

  1. There is a popular falacy that if Roe v Wade is overturned, abortion will become illegal. In fact, the regulatory authority will return to the individual states and the people thereof (as it was before the Roe ruling). Even under the statute under consideration, the “right” to abortion us not abrogated; it is restricted. The taking of a life is a serious matter indeed, and it deserves the utmost seriousness on our part–be we religious or not–if only because it profoundly affects (or could have affected) us all.

    • You are right that overturning Roe will not end abortion, and the states will then decide the matter. But it’s a good start, and most pro-life activists realize that the true battle will only begin if or when Roe is overturned.

  2. To achieve the broadest impact on the country (not just the pro-life movement), the court should focus on the science when Roe was decided versus the science today: DNA, ultrasound, fetal monitoring, etc., all of which reveals the development, viability, and human-ness of life from conception/early stages. This could be a prominent teaching moment that can alter the perspectives of many who are now ambivalent about abortion but are receptive to evidence and science. Hard core abortion supporters won’t be convinced but with the right approach these people can be shown to be on the wrong side of science.

  3. Well reading the tea leaves I would guess they will be upheld 7-2, with only Thomas and Alioto dissenting. The new, so-called conservative Justices will be afraid to be seen as imposing private morality, and in some cases their religion, but Roe and Casey are offensive as a matter of law (delusional Constitutional bases should not be allowed to corrupt the law of the land) never mind morality. But these new Justices have already shown their cowardice so this is a tragic time for free and rational societies.

  4. Many more boats will be required to ferry the Pro-Death crowds assembled at the docks across from the River Styx.Not only that,but good help is hard to find these days.The SCOTUS RINOS are ready to do their part.

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