(LifeSiteNews) — On December 1, the U.S. Supreme Court will hear arguments in Dobbs v. Jackson Women’s Health Organization, a case which will determine whether or not abortion bans prior to fetal viability are considered constitutional. The Mississippi abortion law is a 15-week ban, and if the Court upholds the law, Roe v. Wade will either be gutted or dead.
Decades of political positioning, scores of court appointments, hundreds of millions of dollars, and an unfathomable amount of blood, sweat, and tears have brought us to this moment. The last time the Court ruled on Roe was in the 1992 case Planned Parenthood v. Casey, when Bush Sr. appointee David Souter served as the swing vote to uphold America’s abortion regime. Then-Senator Joe Biden purportedly wept with joy when he heard Roe was safe.
Millions of pro-lifers hope that this time will be different. Bush Sr. appointee Clarence Thomas and Bush Jr. appointee Samuel Alito seem certain to rule against Roe; there is desperate hope that Trump appointees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett will join them. Chief Justice John Roberts is the wild card, although he is known to be pro-life and his wife once served as Executive Vice President on the Board of Directors of Feminists for Life.
It seems unfathomable that the Court would decide to hear Dobbs v. Jackson Women’s Health only to reaffirm Roe, especially this Court. Would six justices with pro-life track records really take an abortion case only to reinvent or uphold America’s abortion regime? It seems unlikely, but it is not impossible. As Rachel Bovard noted at The Federalist, “if Kavanaugh and Barrett betray pro-lifers, we must blow up the conservative legal movement.” The political arm of the pro-life movement has been playing the long game for decades, and this is the payoff moment. If it is another disappointment, it will transform politics as we know it overnight.
Indeed, in order to blunt pro-life optimism and perhaps prevent a backlash, some are urging caution. In an interview for The American Conservative in May, Clarke Forsythe, senior counsel at Americans United for Life and author of the seminal work Abuse of Discretion: The Inside Story of Roe v. Wade, told me that he does not expect Roe to be overturned. He believes that Dobbs is merely a step in the right direction rather than the closing act of the pro-life movement’s political battle.
“Pro-life people should have modest expectations because of the ‘Question Presented’ and accepted by the Justices to decide: ‘whether all pre-viability prohibitions on elective abortions are unconstitutional,’” he told me. “That is, frankly, a modest question, an ‘incremental’ question. However, it is certainly a bigger question than merely dealing with a parental notice of abortion statute, which is involved in another case from Indiana pending at the Court.” He agrees that if the Court declines even to undermine Roe, “the pro-life movement’s legal strategy would need a fundamental overhaul from the ground up.”
Pro-life Princeton philosopher Robert P. George is more optimistic. In an essay last month for First Things titled “Roe will Go,” George went all in on victory:
Let me offer a prediction, free of any face-saving hedge: Next year, the Supreme Court will hold that there is no constitutional right to elective abortions. In Dobbs v. Jackson Women’s Health Organization, a case pending before the court, it will return the issue to the states for the first time in forty-nine years. It will do so explicitly, calling out by name, and reversing in full, the two major cases that confected and then entrenched a constitutional right to elective abortion: Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). And the vote will be six to three.
He lays out, convincingly, why he believes that the six conservative justices will reject halfway measures in favor of overturning Roe — including the fact that this may be their only opportunity to do so. To decline that opportunity would be to retoxify a poison pill that has infected American politics for decades. “As I write — as you read — unborn children are being slain,” George concludes. “As a practical matter, Roe and Casey must be reversed before any of these children can enjoy the full protection of the law.” He believes that six of the justices also recognize that reality.
George has been an integral member of the pro-life movement for decades, and he has been awaiting this moment. He believes it has arrived. The fact that he is so certain brings me optimism, too. It is really possible that, by this time next year, Roe v. Wade will be no more, and that pre-born children in many places in America will finally enjoy the protection under the law that their humanity entitles them to.