Recent events suggest the US Supreme Court – with five conservative justices – is edging toward a rethink of abortion’s constitutionality. New cases define 2021. Viability is changing. States are passing anti-abortion laws.
Moral repulsion for late term abortion is growing. A Democrat-led Congress and states push killing to birth. Nothing is certain, but signs point to a rethink.
First, at least three cases circle, looking for a landing. One is Dobbs v. Jackson Women’s Health Organization, which has been reset for “conference,” that is, whether to accept review or not. The latest postponement is to February 19, this week.
In short, Dobbs – wouldn’t it be nice to say the name instead of Roe? – presents a pivotal question, affecting abortion’s constitutionality. Mississippi law prohibits abortion after 15 weeks, with limited exceptions. The 5th Circuit says the ban is not constitutional under Roe. Mississippi begs to differ. See, e.g., https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/; https://law.justia.com/cases/federal/appellate-courts/ca5/19-60455/19-60455-2020-02-20.html.
A second major case, FDA v. American College of Obstetricians and Gynecologists, nominally decided in January, may return given Biden-Harris’ push for easy abortion. In sum, the Supreme Court restored a rule requiring pregnancy-ending pills be picked up in person. That is big.
The decision was 6-3, setting aside a lower ruling that the requirement “posed a health risk.” Interestingly, six justices – including wobbly Roberts – tipped against making abortion easier. As the Wall Street Journal noted, this is major shift. It suggests tectonic plates are moving, and Roberts is part of that push – away from abortion rights. See, e.g., https://www.stltoday.com/opinion/editorial/editorial-supreme-courts-new-conservative-bloc-approves-a-modest-abortion-restriction/article_4be03759-e08c-5165-be01-0616331a1048.html; https://www.msn.com/en-us/news/us/supreme-court-joins-with-trump-on-restricting-abortion-pills-despite-coronavirus/ar-BB1cHobn; https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20a34.html.
A third case in the wings, poised for comeback, is June Medical Services v. Russo. While the case was decided in 2020 before Barrett, the issue may return. It relates to standing, that is, who can bring cases challenging anti-abortion laws, and how abortion’s constitutionality is evaluated.
The nub is whether state-level abortion providers can – on behalf of others – challenge a law restricting abortion. The Court said yes, but three justices strongly dissented. They were Thomas, Alito, and Gorsuch. Barrett was not there, Kavanaugh was new, Roberts coy.
Thomas wrote, Roe “is grievously wrong for many reasons, but the most fundamental is that its core holding – that the Constitution protects a women’s right to abort her unborn child – finds no support in the text of the Fourteenth Amendment.” Alito added, “the abortion right is used like a bulldozer to flatten legal rules that stand in the way.” Gorsuch and Kavanaugh had questions.
Most importantly, Roberts provided an odd concurrence – the deciding vote on another key question. He effectively changed the legal standard set in 2016 by a liberal court, on which constitutionality is judged.
Rather than requiring burdens outweigh benefits, he said: Just look at burdens. So, a restriction on abortion is fine if not “unduly burdensome,” no need to show benefit to mother. That is new. See, e.g., https://www.usatoday.com/story/news/politics/2020/08/31/abortion-supreme-courts-ruling-abortion-rights-boosts-opponents/5624869002/.
To many, this may seem trivial, but these cases signal High Court frustration with those blindly pushing abortion. They are – if incrementally – aggravating a Court faithful to the Constitution.
Recall, the key here is defining a “person,” because once a fetus is a “person” all 5th and 14th Amendment protections attach to that “person.” No state or federal statue can kill an innocent person, so the question is dispositive – that is, decisive and final. Roe would be reversed, all future unborn children fully protected.
That is why abortion advocates are shrill in insisting a fetus – moments before birth – is not a baby. Pretending a baby is not a baby, they can legitimize death. Once a baby is a baby – an acknowledged legal “person” – he or she is protected by our Constitution. The jig would be up.
Second, look at polls. Something big is changing. While the left tips away from the mainstream, Americans are rethinking their moral compass. More are deciding they do not like abortion.
One recent poll recorded 76 percent of Americans support “some restrictions on abortion,” and 71 percent of young Americans support some restrictions. That is a major shift. See, https://www.christianpost.com/news/71-of-young-adults-in-us-support-limits-on-abortion-poll-finds.html.
The finding mirrors growing opposition to the morally indefensible practice – pushed by Democrats – of late abortions, up to time of birth. On numbers, eight in ten Americans oppose this revolting practice, killing children in a mother’s third trimester – when viable. See, e.g., https://www.lifesitenews.com/news/new-poll-shows-overwhelming-popular-opposition-to-late-term-abortion; https://www.americamagazine.org/politics-society/2019/02/26/new-poll-big-majorities-democrats-and-young-people-reject-late-term; https://www.sba-list.org/polling.
Third, the Supreme Court drift and polls reflect another reality. A child is viable outside a mother’s womb much closer to conception. The difference from 1973, when Roe was decided, is more than statistically significant. It is overwhelming.
The premise – that a child is not viable so not a “person” – is melting. It is what held Roe together. Absent that piece, a child becomes a de facto and de jure “person,” fully entitled to constitutional protections of a “person” – and Roe fails. A nebulous “penumbra of privacy” cannot outweigh a baby’s right to live. Pushing viability toward conception defeats the core argument for abortion. Roe is on a collision course with science, not just morality and God.
All of this is to say, keep watching. The Supreme Court is moving toward a supreme rethink of abortion. Do not give up on what you know is right. Take heart in the sound of yours – and that baby’s – both are real. Keep hope alive and your convictions, although buffeted and belittled, may keep untold babies alive. Moral battles are often long and hard. They are also worth it.