Like a Child at Christmas, We Anxiously Await Supreme Court Decision

By Benjamin Clapper, Executive Director

Do you remember that feeling as a child when you thought Christmas would never come? You waited and waited, but still it seemed like it wasn’t getting any closer. Do you remember wondering what would be under the tree on Christmas morning when Christmas did finally come? With the conclusion of Dec. 1 oral arguments in Dobbs v. Jackson Women’s Health, it’s that anxious feeling again as the pro-life movement must wait to find out what the Supreme Court Justices will put under the tree of our nation.

And if the tone of the oral arguments were any indication, that gift will be much better than the coal that Supreme Court has left us with in the past. How I wish it were June already!

On Jan. 22, 1973, the Supreme Court in Roe v. Wade legalized abortion in all nine months of pregnancy. In 1992 in Planned Parenthood vs. Casey, the Supreme Court reaffirmed Roe v. Wade and emphasized that it’s unconstitutional to prohibit abortion before fetal viability, or when the baby can live outside the womb. Since 1973, we’ve been prevented from protecting the life of the unborn child prior to viability. The Supreme Court has consistently squashed reconsideration of Roe by simply denying a hearing to laws that conflict with this standard.

Fast forward to 2019. Mississippi passed a law protecting nearly all babies 15 weeks and older in the womb from abortion, clearly before the line of viability, which is customarily considered in the 20- to 24-week range. Three months later, we passed a similar law in Louisiana and made the outcome of our law contingent on the outcome of Mississippi’s law.

After lower court challenges, the Supreme Court shocked the nation by agreeing to consider the Mississippi law and setting oral arguments for Dec. 1, 2021. In accepting the Mississippi case, the Supreme Court agreed to consider whether all laws protecting babies from abortion before viability are unconstitutional, a direct challenge to the core holding of Planned Parenthood v. Casey (and therefore Roe v. Wade).

It’s difficult to underestimate the magnitude of this case. For decades, we have waited for this day, and it was surreal to hear the Supreme Court argue the legitimacy of Roe v. Wade. I had to catch my breath as the arguments began!

Here are some of my observations from the oral arguments. Keep in mind that justices are not required in oral arguments to state their positions or say anything, for that matter. However, the comments by the justices or the questions the justices ask attorneys can shed light into their thought processes.

  • A Case for Constitutional Neutrality on Abortion: Justice Kavanaugh made the clearest argument for overturning Roe v. Wade, emphasizing multiple times that the constitution should be “scrupulously neutral” on abortion, neither “pro-choice nor pro-life.” If the Court decides to overturn Roe, expect to read that logic in the decision.
  • An Interest in Life: One of the best lines of the day came from Justice Alito when he said, “The fetus has an interest in having a life.” Justice Alito, Thomas, and Gorsuch each criticized the legal fallacies that undergird the right to abortion, giving confidence that they are in favor of overturning Roe v. Wade.
  • Safe Haven and Adoption: Justice Barrett didn’t tip her hand too much in terms of her level of comfort with Roe v. Wade, and because of that, many commentators have placed Justice Barrett with Chief Justice Roberts as two justices wrestling with the question of how extensive the court should make a change. But Justice Barrett added another element to the discussion in reminding us that Safe Haven laws and adoption give women options other than abortion.
  • Looking for Middle Ground: Chief Justice Roberts expressed dissatisfaction with the viability standard. He even compared America’s current abortion law to countries like Russia and China. Roberts focused on questioning if there was another suitable standard that could be used other than viability but short of overturning Roe v. Wade.
  • But There is No Middle Ground: While Roberts (and possibly Barrett) were looking for neutral ground, Justices Breyer on one side and Justices Alito and Gorsuch on the other pressed their opinions that there is no workable standard other than either the status quo or overturning Roe v. Wade.

    While it is dangerous to make distinctions from an oral argument, you can see a subtle 4-2-3 separation in the court, with Thomas, Alito, Gorsuch, and Kavanaugh open to overturning Roe v. Wade, Roberts and Barrett potentially seeking a new standard without commenting on overturning Roe v. Wade, and Breyer, Sotomayor, and Kagan committed to the status quo of abortion-on-demand.

    The million-dollar questions moving forward are how far Roberts and Barrett will go, and if the six justices can coalesce around one direction. Will they overturn Roe v. Wade all together, sending abortion back to the states, or will they uphold the Mississippi law, thereby protecting more babies, but stopping short of a complete change.

    Now we wait for a decision to be released, likely in late June or early July of 2022. And if the Justices elect to overturn Roe v. Wade, it would be a wonderful gift that would lead Louisiana toward an abortion-free future.