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Pro-life advocates encouraged by court arguments to overturn Roe

Supreme Court

Bob Korn | Shutterstock

John Burger - published on 12/03/21

After Wednesday's hearing on Dobbs v. Jackson, activists cautiously optimistic for a major revision in 2022.

Pro-life advocates were encouraged by what they heard at the Supreme Court on Wednesday. The court heard oral arguments in Dobbs v. Jackson, the first challenge in many years to Roe v. Wade, the 1973 ruling that led to legal abortion nationwide.

Many pro-lifers are cautiously hopeful that the court will overturn Roe and Planned Parenthood v. Casey, the 1992 ruling that upheldRoe.

“A lot could change between now and June [when the court is expected to issue a decision], but just based on today’s oral arguments, I think we’re in a good spot for a 6-3 ruling overturning Roe and Casey,” said Ryan Anderson, president of the Ethics and Public Policy Center.

In an interview with EWTN News Nightly, Anderson compared the questions posed by members of the court’s “conservative” wing to those of its “liberal” members and arguments made by lawyers supporting the abortion clinic that brought the Dobbs case. While there was “not a single question from any of the conservative justices that caused me to have concern that they might be on the wrong side of this issue,” Anderson said, the pro-choice argument was very weak. “They can’t ground it in the Constitution. They can’t ground it in good science, they can’t ground it in good philosophy,” he asserted. 

At one point, Anderson noted, Justice Sonia Sotomayor “asserted that it’s only religion that can lead someone to be pro-life. If that’s true, that’s a really bad sign for secularism.”

Much of the discussion on Wednesday focused on the danger that overturning Roe and Casey would damage the reputation of the court. Justices such as Stephen G. Breyer warned that only exceptional circumstances could warrant breaking the court’s tradition of stare decisis — standing by previous decisions and precedents.

“The justices who are presumed to be Casey-defenders warned repeatedly, in their questioning, that to return the abortion-regulation question to the political process would damage the court, its standing and its reputation,” Richard W. Garnett, the Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame,” said in an op-ed piece in Our Sunday Visitor. “In fact, the opposite is true: Were the justices to yield to political and media pressure and to concoct yet another abortion-regulation-evaluation mechanism with no basis in the Constitution’s text, their standing as an apolitical judicial body would suffer irrevocably.”

Admitting its error in Roe “would repair the damage done to our Constitution by its earlier ruling that excludes, categorically, the most vulnerable persons among us from the law’s protections,” Garnett wrote. “That would not be the end of the pro-life effort, but it would be a welcome step nonetheless.”

Interpreting justices’ comments

Also expressing hope was the pro-life organization Americans United for Life, which posted a tweet saying, “Our team is encouraged today after the #DobbsvJackson oral arguments. Because of the hard work of pro-life organizations who submitted over 80 amicus curiae briefs, all of the necessary facts were presented and discussed. We are grateful!”

It’s clear to everyone that Justices Sotomayor, Stephen Breyer and Elena Kagan would never vote to overturn Roe or Casey

Helen Alvaré, professor of law at the Antonin Scalia Law School of George Mason University, said that it’s more difficult to predict how the remaining justices might vote.

“But their comments were largely promising,” Alvaré said in a commentary in the National Catholic Register

“Justice [Brett M.] Kavanaugh dwelt on the Court’s having correctly overturned all sorts of bad precedents before, and how overruling Roe and Casey would simply return the decision to the states,” she said. “The Supreme Court’s ruling would, in other words, make the Constitution ‘neutral’ on abortion.”

She noted that Chief Justice John G. Roberts Jr. expressed skepticism that a “viability” standard has any constitutional foundation, and noted how Roe and Casey’s allowance of abortion almost to the point of birth is found in few other countries — including the repressive regimes of China and North Korea. 

But, Alvaré noted, Roberts “seemed fearful of a decision that might undercut existing constitutional rights to homosexual sex [the 2003 Lawrence v Texas ruling] and same-sex marriage [2015 Obergefell v. Hodges], and stressed again and again that a 15-week ban provides plenty of time for women to seek an abortion if that’s what they want to preserve their freedom.”

Like other justices, Amy Coney Barrett, the newest member of the court, expressed concern about whether overturning Roe and Casey would run counter to the court’s respect for stare decisis, Alvarè noted. But Barrett sought to counter the arguments that Roe and Casey are needed by women to ensure that they won’t be “forced” into motherhood. She “returned often to the matter of women’s ability to avoid child-rearing today due to laws passed post-Roe allowing ‘safe haven’ for abandoned newborns and their mothers,” the law professor said.

Further, she said, Justice Samuel A. Alito Jr. was “intensely skeptical that the country ever had a ‘history and tradition’ of legal abortion, sufficient to render it a federal constitutional right, and concluded that it is possible for the Court to overrule cases simply on the basis of their being egregiously wrong.”

Alvarè’s analysis continued:

Justice [Neil M.] Gorsuch suggested that it is hard to find a constitutional and workable principle that would allow the Court to draw lines between protected and unprotected abortions, the viability line and the undue burden standard included. And Justice [Clarence] Thomas forced abortion advocates to confront the ramifications of their “autonomy” argument which, he hypothesized, would allow women to ingest dangerous drugs during pregnancy without the state being allowed to express concern for the unborn child.

Also weighing in was Brian Burch, president of CatholicVote, which says its mission is to inspire American Catholics to “live out the truths of our faith in public life.” 

“Millions of faithful Catholics across the nation are hopeful after today’s oral arguments that the Supreme Court of the United States will restore sanity to its abortion jurisprudence which has enabled over 62 million American children to be aborted since 1973 when Roe v. Wade was decided,” Burch said in a statement. “Protecting innocent life is the preeminent moral issue for Catholics but it is also the condition of any just society, and abortion robs our most vulnerable citizens of that most basic human right. Science and common sense tell us children in the womb are as undeniably human as the rest of us – we know for instance that by 15 weeks they already have beating hearts, can suck their thumbs, and even feel pain. It is time to overturn Roe and allow Americans to once again pass laws that reflect these basic values.” 

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