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Do We Dare Hope for the Imminent Demise of Roe
Ana Brennan, J.D. | 02 December 2021
It has been three months, three months since the Texas Heartbeat Law went into effect. Unlike almost every other piece of pro-life legislation passed over the past 49 years, this law has yet to be enjoined. The civil enforcement component of the law has thrown the courts a curveball. But this is abortion jurisprudence; if there is a will, the courts always seem to find a way to protect abortion. That is how we ended up with legalized abortion in the first place. The United States Supreme Court (SCOTUS) has had ample opportunity to enjoin the law, but they have not, yet. For the first time since Roe v. Wade,[i] abortion has been effectively outlawed in a jurisdiction in the United States. This in itself is unbelievable.
On the heels of the victory in Texas, yesterday, the SCOTUS heard oral arguments in Dobbs v. Jackson Women’s Health Organization. This case involves a Mississippi law that bans abortion after 15-weeks. This law is significant because it is a pre-viability ban. The SCOTUS uses viability as the end-all and be-all to determine the state's interest in protecting the unborn. Many are saying this case could overturn Roe. It also is possible for the SCOTUS to uphold the Mississippi law while leaving Roe intact. When it comes to abortion jurisprudence, mental gymnastics is the order of the day.
Yesterday, during oral arguments[ii] of Dobbs, we received a glimpse into the thinking of the Court. Given the limited space, it is impossible to address every argument presented yesterday, but below are some highlights.
Since Roe v. Wade was decided, it has been criticized as implementing seven judges' public policy rather than upholding the Constitution. Justice Thomas asked pointed questions regarding where the right to abortion can be found in the Constitution. This was not surprising. We all know Justice Thomas is a solid pro-life vote. Counsel for Jackson Women’s Health responded with a very general application of liberty in the 14th Amendment. Abortion is about liberty and bodily autonomy pre-viability. Pre-viability, a pregnant woman’s liberty interest supersedes any interest of the unborn child. Justice Thomas asked a question attempting to clarify what this liberty interest encompassed, “Does a mother have the right to ingest drugs and harm a pre-viable baby? Can a state bring child neglect charges against the mother?” Counsel skirted the issue answering, that is not the issue before the Court.[iii]
Courts routinely balance interests when analyzing constitutional issues. When two rights conflict, whose right should prevail? In any other context, if you have to balance any right against some else's right to life, the right to life prevails. Any liberty interest in not being pregnant does not outweigh someone else's right to life.
Justice Alito continued the analysis of the balance of interests in relation to the viability standard.
“If a woman wants to be free of the burdens of pregnancy, that interest does not disappear the moment the viability line is crossed….”, “…the fetus has an interest in having a life and that doesn’t change, does it, from the point before viability to the point after viability.” Justice Alito also addressed the transitory and arbitrary nature of the viability standard.[iv] It seems odd that a “fundamental right to abortion” or one’s humanity should be contingent on advances in medicine, or the lack thereof.
Role of the SCOTUS.
More surprising were the questions proffered by Justice Kavanaugh. His questions revolved around the role of the different branches of government and whether it was the proper role of the SCOTUS to weigh the interests involved between a pregnant woman and her unborn child.[v] As pro-lifers, we know this case will boil down to state's rights and not the rights of the unborn, but that is a start.
Justice Kavanaugh also raised the issue of stare decisis, pointing out the SCOTUS has overruled itself in the past, citing numerous examples, including Brown v. Board of Education,[vi] which reversed the Plessy v. Ferguson[vii] standard of "separate but equal."[viii] Roe is by no means settled law. Roe has been constantly challenged and tweaked over the past 49 years.
It is impossible to discuss Roe without discussing abortion’s social impact. Justice Barrett discussed changes in society that alleviate the "burden" of parenting, such as the fact that every state has a safe haven law allowing parents to relinquish a child.[ix] On the other side, Justice Kagan stated that abortion is “part of the fabric of women’s existence in this country.”[x] Of course, this is not a legal argument and is reminiscent of Justice O’Conner’s statement in Planned Parenthood v. Casey[xi] that women have “ordered their lives" around abortion, again, not a legal argument. Sadly, abortion is the reality of our existence in society. The idea women need abortion to participate in society is one of the most disgusting arguments for abortion. As if the female body is inherently repugnant, in need of surgical or chemical alteration to partake in society. Any society where liberty is predicated on abortion is a society in desperate need of change. The sentiment expressed by Justice Kagan illustrates that the evil of abortion warps the humanity of us all.
The oral arguments seemed promising, but it is difficult to assign motive to a line of questioning and who knows what goes on behind closed doors. It is already being reported that Justice Roberts is trying to broker a compromise.
If Roe is overturned, the euphoria will be overwhelming, but then reality will set in. We all know we will have 50 battles on our hands, but the pro-life movement has been preparing for Roe’s demise. Even with Roe, Texas has been able to protect unborn babies and women from abortion. Imagine what we will be able to accomplish if (when?) Roe is no more.
[i] 410 U.S. 113 (1973)
[vi] 347 U.S. 483 (1958)
[vii] Decided May 18, 1896; Records of the Supreme Court of the United States; Record Group 267; Plessy v. Ferguson, 163, #15248, National Archives.
[xi] 505 U.S. 833 (1992)
Ana Brennan, J.D.
Society of St. Sebastian
Journal of Bioethics in Law & Culture Quarterly