WASHINGTON, July 29, 2021 (LifeSiteNews) — The National Right to Life Committee (NRLC) raised eyebrows across the pro-life community this week with the amicus brief it submitted to the U.S. Supreme Court on its upcoming review of Mississippi’s fifteen-week abortion ban, which preemptively endorses a hypothetical ruling that does not overturn Roe v. Wade.
The Court announced in May that it would be hearing Dobbs v. Jackson Women’s Health Organization, which 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. After its enactment in 2019, the Fifth Circuit Court of Appeals deemed it unconstitutional because of an “unbroken line dating to Roe v. Wade,” the 1973 ruling which imposed on all 50 states a “right” to pre-viability abortion.
Various pro-life public officials, scholars, and activists have filed amicus briefs urging the Supreme Court to directly overturn Roe and 1992’s Planned Parenthood v. Casey (which opened the door to some abortion regulations while reaffirming the “right” to abort itself), including briefs by the attorneys general of Mississippi and Missouri, a brief by Sens. Ted Cruz, Josh Hawley, and Mike Lee, a separate brief by 228 other Congressional Republicans, and a brief by eleven Republican governors.
Most of those briefs make clear, uncompromising arguments calling for a complete reversal of the current abortion jurisprudence and a full restoration of Americans’ right to vote directly on abortion policy. However, the brief filed Tuesday by NRLC and Louisiana Right to Life (LARTL) takes a strikingly different approach.
“Since Roe v. Wade, the Supreme Court has twisted the normal rules of law to protect an absolute abortion right and not given full effect to powerful state interests such as protecting preborn life and maternal health,” NRLC general counsel James Bopp, Jr. said in a press release. “Today, we ask the Court to reverse that tangential path, which will allow greater regulation of abortion, lead to stability in the law, and put Roe itself at issue.”
Instead of asking the Court to finally overturn erroneous abortion precedent — or even to directly affirm the constitutionality of HB 1510 — the brief only calls on the Court to establish a “new roadmap” that might eventually lead to Roe’s undoing at some hypothetical, indeterminate future point, but in the present would merely remand the Mississippi law to the lower court for reconsideration.
“While Amici believe that the logical and inevitable end of the road of applying normal rules to abortion cases will be to restore to the States and to the People the power to protect unborn life throughout pregnancy, this Court need not reach the end of the road in this case to establish the required and appropriate roadmap,” NRLC argues (emphasis added). “The decision on whether to reach the end of the road will likely rest with future Courts, as they apply normal legal rules once again in considering abortion cases.”
“First, [the roadmap] should reject Casey’s viability line, which lacks justification in logic or biology, by answering the question before the Court with a clear ‘no,’” NRLC argues. “Second, the new roadmap should make clear that, because there is no categorical viability line, all state interests may be considered pre-viability (as also post-viability) and that courts should consider the assertion of such interests and supportive evidence. The new roadmap should reaffirm as legitimate all the interests asserted by Petitioners — in protecting maternal health, preborn human life, the medical profession, and civil society — but make clear that other interests may be asserted and considered with evidence not being barred by any categorical viability line.”
“Third, the new roadmap should then clarify that courts should consider the weight of any asserted state interests to determine if the state interests justify the abortion regulation at issue under the appropriate level of scrutiny to which the law is subject, i.e., there are no categorical lines precluding this normal court function,” NRLC continues. “Fourth, the new roadmap should emphasize that normal rules of law must be applied by courts and will be by this Court, which will begin to reverse the anomalies on which Roe’s tangent from normal legal norms was built.”
Several legal observers and pro-life activists took to Twitter to express their disapproval of NRLC’s brief:
Disappointing, but unsurprising. @NRLC and Jim Bopp have been timid and ineffective for a long time, quietly undermining pro-life efforts nationwide. https://t.co/FVwdVD9ka3
— Josh Craddock (@joshjcraddock) July 27, 2021
Clients in the womb advised to seek new representation. https://t.co/R29H2LOYGF
— Chad Pecknold (@ccpecknold) July 28, 2021
This is either another case of defining victory down or, even worse, National Right to Life realizing that if the courts actually rule against abortion, it’ll be out of a job. https://t.co/4JjVi0AYzj
— Nate (on the) Stone (@nes_nathan) July 28, 2021
John Gerardi, CEO of Right to Life of Central California (which is not affiliated with NRLC), offered a more detailed response to NRLC’s “distressing and bizarre” move:
This is distressing and bizarre. A key goal of NRLC's mission for 48 years has been overturning Roe and its successor case, Planned Parenthood v. Casey. When pro-life legal thinkers as diverse as @EdWhelanEPPC and @Vermeullarmine both think you're off-base, you have a problem.
— John Gerardi (@fresnojohnny) July 28, 2021
It also undercuts Mississippi's AG, Lynn Fitch. There had been some concern (voiced by @McCormickProf) that Fitch would not ask for a full repeal of Roe and Casey. AG Fitch ultimately did so. Now NRLC is itself asking for far less than MS, making their position seem more extreme.
— John Gerardi (@fresnojohnny) July 28, 2021
Also, NRLC is acting schizophrenic. My friend @JonathanKeller noted NRLC's recent press release praising MS's attorney general for her brief to SCOTUS, pledging an amicus brief in support. Yet NRLC's amicus brief calls for far less than Mississippi's. Why? https://t.co/lTkkQPApGz
— John Gerardi (@fresnojohnny) July 28, 2021
I'm no expert on Supreme Court rules or deadlines, but insofar as they can, NRLC should retract this immediately. It is an embarrassment to them and their supporters.
— John Gerardi (@fresnojohnny) July 28, 2021
Despite being the most prominent national pro-life lobbying organization, NRLC has been involved in numerous inter-movement disputes over the years. Bopp and NRLC tend to oppose direct, state-level abortion bans, advocating that pro-lifers must wait for the Supreme Court to overturn Roe before mounting a direct attack on legal abortion. NRLC and its affiliates also tend to insist on rape exceptions in pro-life legislation.
NRLC has also faced criticism in the past for allegedly putting the priorities of the Republican establishment ahead of the pro-life cause, from throwing its weight behind policies unrelated to abortion (such as former President George W. Bush’s Part D expansion to the federal Medicare program), to pressuring lawmakers and affiliates to support rape and incest exceptions, and even pro-abortion Republicans such as Sen. Lisa Murkowski of Alaska.
As for Dobbs, it remains to be seen whether the Supreme Court’s Republican-appointed majority will go as far as pro-lifers hope.
Only Justice Clarence Thomas is explicitly on the record as anti-Roe, and only he and Justice Samuel Alito have established consistently conservative records over a significant period of time. Many have placed a great deal of hope with former President Donald Trump’s appointees, though conservatives have also been alarmed by Justice Neil Gorsuch voting to redefine “sex” in federal civil rights law last year, and Justices Brett Kavanaugh and Amy Coney Barrett voting not to take up several cases of concern to religious, conservative, and/or pro-life Americans.