WASHINGTON, D.C. (LifeSiteNews) – This is it. This week, the U.S. Supreme Court begins considering Dobbs v. Jackson Women’s Health Organization, the case that will not only determine more than any other how much we should expect from our current crop of justices, but how we should view Donald Trump’s presidency and decades of pro-life legal strategy.
To recap, the case concerns Mississippi’s HB 1510 law banning abortions from being committed past 15 weeks for any reason other than physical medical emergencies or severe fetal abnormalities. The state is asking that the Court not only uphold the law, but take the opportunity to overturn the last half-century of abortion precedent and restore the rights to vote and legislate on the issue.
And this case is a perfect opportunity to do exactly that. While the other abortion case currently before the Court, concerning the Texas Heartbeat Act, hinges on process issues not directly related to abortion jurisprudence, Dobbs tackles head-on the viability line that supposedly makes some abortions a “fundamental right.”
With two-thirds of the Court having been appointed by the last three pro-life Republican presidents, following the recommendations of conservative legal scholars and pro-life strategists, this case should be a slam dunk. Only … it’s not.
Justices Clarence Thomas and Samuel Alito are rock-solid, yet Chief Justice John Roberts is anything but. His betrayals on Obamacare are well known, as is the fact that he has already declined at least one opportunity to vote against Roe v. Wade.
First Trump appointee Neil Gorsuch has been more conservative than not (with the glaring exception of the disastrous Bostock ruling), but the two that followed, Brett Kavanaugh and Amy Coney Barrett, have been so unreliable on life, liberty, and more that Alito and Gorsuch have felt compelled to call out their “fortitude” in writing.
Anything is possible, and Mississippi has reasonable odds of a narrow victory for HB 1510. But if that’s all pro-lifers get, it will be a damning indictment of the direction of the so-called “conservative legal movement” – i.e., the Federalist Society and associated scholars in the upper echelons of GOP politics and right-of-center think tanks – and the deference it has enjoyed from GOP presidents and senators and pro-life lobbyists alike.
As a pure guessing matter, the 3-3-3 split in the Dobbs case envisioned here is probably where I also fall.
And if that happens, it would be a complete failure for the modern "conservative legal movement." https://t.co/iFJ0NEkiV7
— Josh Hammer (@josh_hammer) November 29, 2021
“We have already seen that judicial half-measures — such as [1993’s Planned Parenthood v.] Casey’s preserving only Roe’s ‘essential holding’ — result only in more arbitrary decision-making,” former Reagan administration Attorney General Edwin Meese wrote Monday. “Under these circumstances, a failure to reverse a body of law so blatantly at odds with the effort to restore neutral principles to constitutional interpretation would cast doubt on the idea that there are neutral principles the court can apply.”
“The voters who trusted in the public statements of judges to interpret the law as written would have reason to doubt whether their trust was well placed,” Meese warned. “The next generation of law students would fairly ask whether it is worth standing for neutral interpretive principles when most of a court purportedly committed to them will, when the stakes are sufficiently high, set them aside. These law students will be tempted, understandably so, to abandon this philosophy in favor of a purely results-oriented approach to judging.”
That said, while Roe’s survival would be horrible for the preborn and for the Constitution, a weak outcome in Dobbs might have a silver lining or two. Those of us who have spent the last decade or more shouting from the rooftops about the need to vet judicial nominees more carefully have gone largely ignored or belittled, so it might be the sad reality that nothing less than losing the very thing we thought our leaders were working toward would be a sufficiently shocking wakeup call to the need to reevaluate our leaders and our strategies.
Unfortunately, it will be several months after oral arguments before we know for sure what the Supreme Court is going to do. So in the meantime, let us pray for the best, prepare for the worst, and fill the next several months with a steady chorus of public reminders to our newest justices that they took an oath to the Constitution, no matter how much fortitude it takes to live up to it.