The liberty principle for this Freedom Friday concerns an abortion case currently resting with the justice on the U.S. Supreme Court. The justices heard oral arguments in the Dobbs v. Jackson Women’s Health Organization case on Wednesday, and plenty of conservatives are optimistic that the justices will overturn Roe v. Wade. If Roe is overturned, it will end abortion on demand on a national basis. This case comes from a Mississippi law that would ban most abortions after fifteen weeks of pregnancy.
The reason for the conservatives’ hope lies in the balance of the justices with five conservative justices, three liberal justices, and a Chief Justice that is mostly conservative but often becomes a swing vote. The hope also comes from the questions and statements made by the justices during the oral arguments.
Virginia Allen at The Heritage Foundation interviewed Denise Harle, the senior attorney and director of the Center for Life at Alliance Defending Freedom today. Harle made clear her feeling of how the justices should decide: “I feel that the Supreme Court right now has a very clear, intellectually honest blueprint to overturn Roe v. Wade, restore the Constitution to its proper meaning and understanding, and return the issue of abortion back to the people of America.”
Allen asked Harle to explain the “big question” that the justices will consider when deciding this case. Harle explained that there are actually two big questions.
So, there were two big questions, basically. The bottom line really is whether to overturn Roe v. Wade. And that is huge. This is the first and best opportunity that the nation has seen to do that. And that was squarely at issue in all the discussions today. Beyond that, the questions the court was grappling with was of this viability standard.
So, just a little bit of legal background, Roe v. Wade, and then the case interpreting it, Planned Parenthood v. Casey in 1992, set up essentially a viability role, which is that states cannot protect unborn children before the point of viability.
Now, in Roe v. Wade, 1973, that was a 24- to 28-week range. By the time of Casey, it was 23 to 24. Now, we see babies surviving at 21 or 22. So it’s a moving target, certainly not a constitutional basis.
And so, one of the biggest questions the justices were asking is, where does this come from? It’s not in the Constitution, what is the legal basis for it? And it seems arbitrary because a baby, what’s the difference between 15 and 21 weeks, for example?
And what was very interesting was that the abortion clinic advocate did not have an explanation or a justification, simply said that it’s a principled line and we followed it for 50 years, and so we should stick with it. And I think it was a very unsatisfying answer.
The advocate for the abortion clinic essentially said, “This is the precedent, and we should continue with it.” Harle explained that their answer presents “a problem for a couple of reasons.”
One is that the Supreme Court in its cases has repeatedly affirmed that states do have an important interest in protecting what they’ve called vulnerable and innocent life from the moment of conception.
So the Supreme Court has actually said in multiple cases that states have important interests in protecting maternal health and unborn life from the outset of pregnancy. That is and has always been a bit of a conflict with Roe and Casey’s holdings.
The other piece of the puzzle today was this question of stare decisis, which is the Latin term for whether to just follow the precedent. And as several justices pointed out and the Mississippi solicitor general pointed out, the Supreme Court, when it has made an erroneous decision, fixes that decision—Brown v. Board of Education overruling Plessy v. Ferguson.
There are fantastic examples of where the Supreme Court was wrong. And the best thing to do is to correct it as soon as possible so that the Constitution is put back in its proper place in America.
This was the central argument put forth by Mississippi Solicitor General Scott Stewart. He made the point that there is no explicit right to abortion written in the Constitution. Allen asked Harle how strong she thought this argument was, and Harle replied: “It was so strong, in fact, that the other side did not even dispute it. I did not hear anyone, including a liberal justice or the U.S. solicitor general or the abortion clinic attorney, attempt to argue that there is a right in the Constitution that secures abortion.”
Mississippi had a second part to their argument that was also powerful: “There’s no middle ground that the court can take without causing all kinds of new problems.” If there truly is no middle ground, Harle concluded that there are two options for the Supreme Court: “overturn Roe completely or continue to stay in this horrible mess” of abortion on demand.
So, what happens if Roe is overturned? According to Harle, the justices would say that “the Constitution is neutral on abortion. And if the Constitution is silent on abortion, then each state and the voters of each state can do what they want.” Harle considered this a “clean solution” to the problem and “the constitutionally correct solution.”
Another point brought out by Harle is that Chief Justice John Roberts “particularly seized on some of the facts about international law on abortion.” What are some of those facts? The United States is “one of only six nations in the entire world that allows abortion on demand through all nine months of pregnancy.” The Chief Justice pointed out that it is “an appalling policy” according to the international human rights consensus. Harle believes that “90% of countries limit abortions at 15 weeks,” which recognizes that “life is a fundamental human right.”
Much more information came out in the podcast, and you can link to it here. A crucial point is that the matter has not been decided, and a lot can happen between the oral arguments and the final decision. Please join me in praying for the justices that they will be inspired to make the decision that is right for America.