{"id":258642,"date":"2021-12-10T06:39:33","date_gmt":"2021-12-10T12:39:33","guid":{"rendered":"https:\/\/www.liveaction.org\/news\/?p=258642"},"modified":"2021-12-14T15:12:01","modified_gmt":"2021-12-14T21:12:01","slug":"time-supreme-court-overturn-roe-chance-will","status":"publish","type":"post","link":"https:\/\/archive.liveaction.org\/news\/time-supreme-court-overturn-roe-chance-will\/","title":{"rendered":"It’s past time for the Supreme Court to overturn Roe – and this time, there’s a good chance they will"},"content":{"rendered":"
<\/div>

Roe v. Wade <\/span><\/i>is the U.S. Supreme Court\u2019s last standing defining failure. <\/span>Dobbs v. Jackson Women\u2019s Health<\/span><\/i> places us on the cusp of witnessing Roe\u2019s demise, allowing for true legal protection for all American citizens. For almost 50 years, Americans have been deprived of the ability to protect our youngest brothers and sisters from the violent killing of abortion. <\/span>Roe <\/span><\/i>contrived that the Constitution provided every woman with a \u201cright to abortion,\u201d a claim that has no basis in the text, history, or traditions of our nation\u2019s governing charter. In the oral arguments held before the Court on December 1st, the fiction of <\/span>Roe <\/span><\/i>was addressed head-on.\u00a0<\/span><\/p>\n

A Move in the Right Direction\u00a0<\/b><\/p>\n

When the Court agreed to hear <\/span>Dobbs, <\/span><\/i>it chose to address the question, \u201cUnder the Constitution, may a State prohibit elective abortions before viability?\u201d Since <\/span>Roe <\/span><\/i>was issued in 1973, and the core holding of that case was supported in 1992 in the case of <\/span>Planned Parenthood v. Casey,<\/span><\/i> states have been extremely limited in their ability to pass laws that protect preborn life. States have been particularly restricted from protecting children younger than about 24 weeks, a marker commonly used to delineate if a child is \u201cviable\u201d outside of her mother. <\/span><\/p>\n

The Court\u2019s prohibition to states against passing protective laws has not stopped states from passing laws, in fact, hundreds of laws protecting preborn life have been passed in the last few decades, but unfortunately, these laws have almost never gone into effect. If a state passes a law that the Court says violates their abortion jurisprudence, lower courts will enjoin the law from being enforced. When the Court chose to hear Dobbs<\/em>, Mississippi’s law protecting children from abortion beginning at 15 weeks gestation had already been put on hold by a lower court. Mississippi’s Attorney General then requested the Supreme Court hear the case \u2014\u00a0a request made by dozens of states every year which are usually uniformly denied. This request was accepted. <\/span>Why?\u00a0<\/span><\/p>\n

The fact that the Court agreed to hear the case in the first place indicates that it is ready to issue a change in abortion-related decisions. If the Court intended to strike down Mississippi’s law and reaffirm <\/span>Roe v. Wade<\/span><\/i>, it could have accomplished that by refusing to grant the request for a hearing. The Court’s hearing of the case gives a strong indication that at the very least the Court intends to uphold the constitutional validity of Mississippi’s 15-week protection. That is the baseline, and should not satisfy Americans concerned with protecting the human rights of all Americans. To examine whether the Court has the boldness to go all the way and repeal <\/span>Roe v. Wade<\/span><\/i>, let\u2019s look at what happened during the oral arguments.\u00a0<\/span><\/p>\n

READ:\u00a0Some said Planned Parenthood v. Casey settled the abortion conversation. They were wrong.<\/a><\/em><\/strong><\/p>\n

Close Reading Indicates the Court Will Overturn Roe\u00a0<\/b><\/p>\n

The oral arguments went extremely well for the pro-life side. The Justices’s questions made clear that six lean strongly toward upholding the constitutionality of Mississippi’s law. Examining some lines of questioning, in particular, can illuminate whether the Court will overrule <\/span>Roe <\/span><\/i>and <\/span>Casey <\/span><\/i>completely.\u00a0<\/span><\/p>\n

For an opinion to rule, five justices of the nine on the Court must sign on to it. On the current Court, three Justices have made their pro-abortion stance clear and continued to advocate for that view during oral arguments: Breyer, Kagan, and \u00a0Sotomayor. The other six indicated they would choose to uphold Mississippi’s law, but it is unclear how they may vote on overturning <\/span>Roe <\/span><\/i>in totality.\u00a0<\/span><\/p>\n

Justice Clarence Thomas is the strongest advocate for a proper understanding of our Constitution\u2019s protections for human life on the Court. He began oral arguments by pointing out the truth in a question to Mississippi Solicitor General Scott Stewart, asking, \u201cYou say that [<\/span>abortion<\/span>]\u00a0<\/span>is the only constitutional right that involves the taking of a life. What difference does that make in your analysis?\u201d Justice Thomas has already ruled once to overrule <\/span>Roe<\/span><\/i>\u00a0in the minority opinion in <\/span>Planned Parenthood v. Casey <\/span><\/i>(1992). We can be confident that he will be a strong vote once more to overturn <\/span>Roe<\/span><\/i>.\u00a0<\/span><\/p>\n

Justice Samuel Alito drew comparisons between <\/span>Roe <\/span><\/i>and other egregiously wrong decisions in the Supreme Court’s past, including <\/span>Plessy v. Ferguson, <\/span><\/i>which had enshrined racial discrimination before it was overturned in <\/span>Brown v. The Board of Education<\/span><\/i>. Justice Alito asked the Solicitor General of the United States Elizabeth Prelogar, who advocated against Mississippi’s law, \u201cIs it your argument that a case can never be overruled simply because it was egregiously wrong?\u201d Signaling that <\/span>Roe <\/span><\/i>may be \u201cegregiously wrong\u201d puts Justice Alito in the overturn <\/span>Roe <\/span><\/i>camp.\u00a0<\/span><\/p>\n

Justice Neil Gorsuch has had few opportunities to rule or opine on abortion law, but his questioning boded well for the potential to overturn <\/span>Roe<\/span><\/i>. He asked similar questions to both the pro-life and anti-life advocates, surrounding whether the Court could conceivably uphold Mississippi’s law without striking down <\/span>Roe<\/span><\/i>, saying, \u201cIf this Court will reject the viability line, do you see any other intelligible principle that the Court could choose?\u201d Both sides said that without the viability standard,\u00a0<\/span>Roe <\/span><\/i>would be unworkable. This was an important line of questioning that drew out the absurdity of the \u201cmiddle\u201d option of upholding the 15-week law but also upholding <\/span>Roe<\/span><\/i>. Justice Gorsuch\u2019s questioning demonstrated that if Mississippi’s law is upheld, <\/span>Roe <\/span><\/i>must be overturned.<\/span><\/p>\n

Justice Brett Kavanaugh focused on his perception of the Constitution\u2019s neutrality on the issue of abortion. We will look at this more in-depth when we examine the 14th Amendment\u2019s role in this case, but Justice Kavanaugh\u2019s defense of the neutrality of the Constitution when it comes to abortion is incompatible with upholding <\/span>Roe. <\/span><\/i>\u00a0<\/span><\/p>\n

Justice Amy Coney Barrett strikingly asked about the idea of stare decisis<\/em>, which means to stand by things decided. \u201cAnd I think a lot of the colloquy you’ve had with all of us has been about the benefits of stare decisis, which I don’t think anyone disputes,” she said, “and, of course, no one can dispute because it’s part of our stare decisis doctrine that it’s not an inexorable command and that there are some circumstances in which overruling is possible. You know, we have Plessy, Brown. We have Bowers versus Hardwick, to Lawrence.\u201d <\/span>Plessy <\/span><\/i>enshrined racial segregation and was later overturned, <\/span>Hardwick <\/span><\/i>upheld the criminalization of same-sex relations and was also later overturned. By placing <\/span>Roe <\/span><\/i>in a similar category to the aforementioned landmark decisions it appears Justice Barrett is leaning towards overturning <\/span>Roe<\/span><\/i>.\u00a0<\/span><\/p>\n

That leaves us with Chief Justice John Roberts, who is known for placing a high value on institutional legitimacy and popular support for the Court in his decision-making. In this case, Justice Roberts harshly questioned the viability standard, indicating possible approval of Mississippi’s law, but seemed hesitant to throw out <\/span>Roe <\/span><\/i>altogether. He even made this comparison: \u201cWhen you get to the viability standard, we share that standard with the People’s Republic of China and North Korea. And I don’t think you have to be in favor of looking to international law to set our constitutional standards to be concerned if those [nations] share that particular time period.\u201d Chief Justice Roberts seems likely to uphold Mississippi’s law, but it is unclear how he will rule on <\/span>Roe <\/span><\/i>itself.\u00a0<\/span><\/p>\n

READ:\u00a0A diverse pro-life movement rallied at Supreme Court: \u2018Anyone can be pro-life, and everyone should be\u2019<\/a><\/em><\/strong><\/p>\n

Mississippi Solicitor General Scott Stewart concluded his argument powerfully, saying, \u201cIn closing, I would say that in his dissent in <\/span>Plessy v. Ferguson<\/span><\/i>, Justice Harlan emphasized that there is no caste system here. The humblest in our country is the pure, the most powerful. Our Constitution neither knows nor tolerates distinctions on the basis of race. It took 58 years for this Court to recognize the truth of those realities in a decision, and that was the greatest decision that this Court ever reached. We’re running on 50 years of Roe. It is an egregiously wrong decision that has inflicted tremendous damage on our country and will continue to do so and take innumerable human lives unless and until this Court overrules it.\u201d\u00a0<\/span><\/p>\n

While predicting the final machinations of the Supreme Court is challenging, we can be confident that the Court will uphold the Mississippi protection, and optimistic that it will overturn <\/span>Roe. <\/span><\/i>Ultimately, there appear to be five solid votes to overturn <\/span>Roe<\/span><\/i>, counting Justices Thomas, Alito, Gorsuch, Kavanaugh, & Barrett. Chief Justice Roberts could concur in upholding Mississippi’s law but not going as far to strike down <\/span>Roe, <\/span><\/i>and the final three Justices should be expected to write in dissent<\/span>. If there are indeed at least five votes to overturn <\/span>Roe,<\/span><\/i>\u00a0Americans will have the first opportunity in almost 50 years to legally protect their youngest citizens.\u00a0<\/span><\/p>\n

True Citizenship Under the 14th Amendment\u00a0<\/b><\/p>\n

We should be optimistic about the potential reversal of <\/span>Roe\u00a0<\/span><\/i>and her constitutional progeny. For five decades states have been prevented from protecting preborn children in their jurisdictions, and sending the issue of abortion back to the states will save thousands while removing a grave black mark on our judicial system. But that is not enough. <\/span><\/p>\n

In a post-Roe<\/span> world, we know that some big and powerful states like California and New York will not only have a legal abortion, but will subsidize and incentivize the horrific act. Our nation will have \u201cabortion sanctuaries,\u201d states that will even pay out-of-state mothers to come and seek the intentional deaths of their own preborn children. Overturning <\/span>Roe <\/span><\/i>will be a true generational victory, but we also must keep our eyes long-term on the pursuit of the true application of our constitutional rights to preborn Americans nationwide.\u00a0<\/span><\/p>\n

During oral argument in Dobbs, Justice Kavanaugh said, \u201cAnd I think they also then continue, because the Constitution is neutral, that this Court should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life, but, because, they say, the Constitution doesn’t give us the authority, we should leave it to the states\u00a0 and we should be scrupulously neutral on the question and that they are saying here, I think, that we should return to a position of neutrality on that contentious social issue rather than continuing to pick sides on that issue.\u201d <\/span>This statement indicates strongly that Justice Kavanaugh could vote to overturn <\/span>Roe<\/span><\/i>. But the truth is the U.S. Constitution is not<\/em> neutral on abortion. Our Constitution affirmatively guarantees all<\/em> Americans \u2014\u00a0regardless of age, size, or location\u00a0\u2014 equal protection and due process under the law. That must include the right to be born and live.\u00a0<\/span><\/p>\n

The 14th Amendment properly understood protects preborn Americans from intentional killing.<\/span>\u00a0Overturning <\/span>Roe <\/span><\/i>will be a critical victory in the fight to protect human life. But we must fight in every state legislature across our nation to protect our children, and we must begin vetting judicial nominees on the basis of their understanding and commitment to the human right to life as protected by the 14th Amendment.\u00a0<\/span><\/p>\n

Americans who respect life should be encouraged, and ready to vigorously fight on behalf of the most vulnerable in our society like never before.\u00a0<\/span><\/p>\n

Bio: Noah Brandt is Director of Government Affairs for Live Action.<\/em><\/p>\n

\u201cLike\u201d Live Action News on Facebook<\/a>\u00a0for more pro-life news and commentary!<\/strong><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Roe v. Wade is the U.S. Supreme Court\u2019s last standing defining failure. Dobbs v. Jackson Women\u2019s Health places us on the cusp of witnessing Roe\u2019s demise, allowing for true legal protection for all American citizens. For almost 50 years, Americans have been deprived of the ability to protect our youngest brothers and sisters from the […]<\/p>\n","protected":false},"author":855,"featured_media":258670,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false},"categories":[3,9459],"tags":[1255,14616,253,10512,14618,14617,14620,144,197,14619],"yoast_head":"\nIt's past time for the Supreme Court to overturn Roe - and this time, there's a good chance they will<\/title>\n<meta name=\"description\" content=\"The fact that the Supreme Court agreed to hear the case in the first place indicates that it is ready to issue a change in abortion-related decisions.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/archive.liveaction.org\/news\/time-supreme-court-overturn-roe-chance-will\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"It's past time for the Supreme Court to overturn Roe - and this time, there's a good chance they will\" \/>\n<meta property=\"og:description\" content=\"The fact that the Supreme Court agreed to hear the case in the first place indicates that it is ready to issue a change in abortion-related decisions.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/archive.liveaction.org\/news\/time-supreme-court-overturn-roe-chance-will\/\" \/>\n<meta property=\"og:site_name\" content=\"Live Action News\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/liveaction\" \/>\n<meta property=\"article:published_time\" content=\"2021-12-10T12:39:33+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2021-12-14T21:12:01+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/archive.liveaction.org\/news\/wp-content\/uploads\/2021\/12\/GettyImages-1356557101-supreme-court-signs.jpg\" \/>\n\t<meta property=\"og:image:width\" content=\"1200\" \/>\n\t<meta property=\"og:image:height\" content=\"650\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Noah Brandt\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@liveaction\" \/>\n<meta name=\"twitter:site\" content=\"@liveaction\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Noah Brandt\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"9 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\/\/archive.liveaction.org\/news\/time-supreme-court-overturn-roe-chance-will\/#article\",\"isPartOf\":{\"@id\":\"https:\/\/archive.liveaction.org\/news\/time-supreme-court-overturn-roe-chance-will\/\"},\"author\":{\"name\":\"Noah Brandt\",\"@id\":\"https:\/\/archive.liveaction.org\/news\/#\/schema\/person\/6713f9ff81d4cf908c92b68f28127b15\"},\"headline\":\"It’s past time for the Supreme Court to overturn Roe – and this time, there’s a good chance they will\",\"datePublished\":\"2021-12-10T12:39:33+00:00\",\"dateModified\":\"2021-12-14T21:12:01+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\/\/archive.liveaction.org\/news\/time-supreme-court-overturn-roe-chance-will\/\"},\"wordCount\":1892,\"publisher\":{\"@id\":\"https:\/\/archive.liveaction.org\/news\/#organization\"},\"keywords\":[\"14th Amendment\",\"Casey\",\"Constitution\",\"Dobbs v. 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