The End of Roe?

What Pro-Lifers Need to Know About the "Dobbs" Case

In January 1973, the Supreme Court of the United States (SCOTUS) found the right to abortion hiding in the shadows of the Constitution's Bill of Rights. The now infamous Roe v. Wade decision, along with its companion case, Doe v. Bolton, was based on historical and medical inaccuracies and on legal reasoning so convoluted even its proponents can't defend it to this day.¹ Nineteen years later, in its Casey v. Planned Parenthood decision, the Court added insult to injury by reaffirming Roe's fetal "viability" criterion of 24 weeks and reinforcing a prohibition against placing any "undue burden" on a woman seeking an abortion after that point. The result has been the destruction of 62 million defenseless human beings, regarding whom there has been no burden deemed too insignificant to prohibit their termination.²

But all that may change soon. There's a new court case in town: Dobbs v. Jackson (Mississippi) Women's Health Organization. The case was argued before SCOTUS on December 1, 2021, and a decision is expected in June. Dobbs may contain enough light to penetrate the shadowy penumbra of the Constitution and overturn Roe v. Wade. Pro-lifers have good reason to be optimistic that it will. But either way, they had better also be ready for what follows.

The Canards of Viability & Precedent

There are two key elements to the legal force behind the Roe and Casey decisions. One has to do with whether or not states can limit abortion before fetal viability. The Roe court defined viability as the point at which "the fetus presumably has the capability of meaningful life outside the womb."³ This they placed at 24 weeks' gestation without any regard for scientific evidence to the contrary. Never mind the fact that a toddler can't survive on its own outside the womb, or that advances in technology have now made possible the survival of infants born as early as 21 weeks' gestation.⁴ The point is that viability is a moving target for which there is no legal definition. Dobbs takes full advantage of this legal liability.

Second, those who defend Roe and its legal progeny have repeatedly done so by an appeal to honor legal precedent. The circular reasoning here would be comical if it weren't so tragic. It is based on the legal doctrine of stare decisis—to "stand by things decided . . . and to not disturb settled points."

Settled points?

Roe and Casey settled the issue of abortion in the same way Dred Scott settled the issue of slavery or Plessy v. Ferguson settled the acceptability of Jim Crow laws. Invoking stare decisis by declaring the right to abortion to be "settled law" is indefensible. The right to have an abortion did not become eternal in virtue of the flawed ruling that made it legal in 1973.

The Beauty of Dobbs

For understanding these points, pro-lifers owe a debt of gratitude to Mississippi Attorney General Lynn Fitch. When her state legislature voted to impose a ban on abortion after 15 weeks, the law was challenged in court based on the premise that it violated the "undue burden" test created by Roe and Casey.

Fitch defended the Mississippi law all the way to the Supreme Court by insisting that states do have the right to place limits on abortion. If she is correct, her case completely undermines Roe and Casey and thereby neutralizes the Supreme Court's control over the abortion debate. Her contention is this:

The only workable approach to accommodating the competing interests here is to return the matter to "legislators, not judges." . . . The national fever on abortion can break only when this Court returns abortion policy to the states—where agreement is more common, compromise is more possible, and disagreement can be resolved at the ballot box.⁵

The tactical genius of Ms. Fitch's maneuver lies not only in how it exposes the arbitrariness of the 24-week viability standard, but also in the way it forces the Court to confront the jurisprudence that led to Roe in the first place. Upholding Mississippi's right to ban abortion after 15 weeks cannot coexist with Roe's 24-week viability limit. Since that limit is rationally and legally vacuous, the whole house of cards comes tumbling down. And that means Dobbs v. Jackson is a formidable challenge to both the legal reasoning and the precedents surrounding the right to abortion on demand.

Pro-life Advocacy After Roe

The first thing pro-life advocates need to understand about this case is that a positive outcome in Dobbs will simply remove the SCOTUS-manufactured rationale that has permitted abortion for nearly any reason over the last 49 years. If the Court upholds Mississippi's 15-week limit and overturns Roe, state legislatures will be left to decide the issue for themselves. Some have already done so.

Forty-seven states have laws on their books limiting abortion for various reasons. Some of these laws actually predate Roe but were rendered impotent in its wake. Seventeen states added new restrictions in 2021 alone. Today, there are "43 state bans on abortion at some point in a pregnancy. Overturning Roe would eliminate the legal basis for challenging these restrictions under federal law."⁶

If you're pro-life, this sounds very encouraging. But don't expect abortion rights activists to roll over and accept defeat. Fourteen states and the District of Columbia, including some which had also approved some level of restriction on abortion, have also passed laws preemptively and explicitly protecting and reinforcing abortion rights if Roe is overturned.⁷

Illinois is one of these. In 2019, Governor J. B. Pritzker signed the so-called Reproductive Health Act into law, ensconcing the right to abortion in his state. The following year, the number of abortions in Illinois increased by 29 percent, and nearly 10,000 women traveled there from other states to exercise their "reproductive freedom."⁸

In other words, the abortion limits instituted in nearby states didn't stop abortions; they just moved them to Illinois. The lesson here is that a victory in Dobbs won't soften the differences between opponents in the abortion debate; it will sharpen them.

Changing Hearts

A victory in Dobbs may well be the end of Roe, but it certainly won't be the end of the moral travesty that is abortion. The battle will simply become more localized. Politicians at every level who have used the cover of the courts to avoid taking a stand on the issue will be exposed. And pro-life advocates will need to be prepared to hold them accountable both in the court of public opinion and at the ballot box.

Abortion is morally wrong because it unjustifiably takes the life of an innocent human being. In a perfect world, we would end abortion tomorrow for that reason alone. But we don't live in a perfect world. A favorable Dobbs ruling could be a step in the right direction, but we should take it knowing that although political and legal maneuvers are essential, they are peripheral elements of the cause. At its heart, abortion is a moral problem. Thus, while efforts to make it illegal and politically unviable are laudable and necessary, they are not the endgame. The battle against abortion won't be over until we succeed in making it unthinkable.

Notes
1. Ramesh Ponnuru, "The Corruption of History," National Review (Nov. 11, 2021): https://bit.ly/3rFK6ij.
2. See LifeNews report (Jan. 18, 2021): https://bit.ly/3KUzTX9.
3. Harry Blackmun, Roe v. Wade, 410 U.S. 113 (1973), 163.
4. Micaiah Bilger, "Premature Baby Born at 21 Weeks Is the Youngest Ever to Survive," LifeNews (Nov. 30, 2018): https://bit.ly/35o79pk.
5. Sarah Ulmer, "Attorney General Fitch Files Brief in Dobbs v. Jackson Women's Health Abortion Ban Case," Y'all Politics (July 22, 2021): https://bit.ly/3rGtgPb.
6. Dan McLaughlin, "Abortion Wars After Roe," National Review (Nov. 11, 2021): https://bit.ly/3sixHQC.
7. Ibid.
8. Angie Leventis Lourgos, "Nearly 10,000 Women Traveled from Out-of-State to Have an Abortion in Illinois in 2020—a 29% Increase," Chicago Tribune (Jan. 25, 2022): https://bit.ly/3smx2xm.