Life After Roe is Coming

The Supreme Court heard oral arguments for the Dobbs v. Jackson Women’s Health Organization on December 1st, and the day did not bode well for the abortion industry. The majority of the court appears to be in favor of upholding the Mississippi abortion ban after the 15th week of gestation, meaning Roe v. Wade is in danger.

The abortion clinic’s attorney argued that their client should win the case and Roe v. Wade should stand simply because Roe is already precedent. However, the judicial system has a duty to go against the precedent when it’s clearly faulty. Justices have done this in the past when a previous decision was clearly erroneous. A major case noted by the justices was Brown v. Board of Education in 1954, which overturned Plessy v. Ferguson, the earlier decision which allowed racial segregation.

During the hearing, Justice Brett Kavanaugh mentioned other celebrated cases that overruled prior decisions and Mississippi Solicitor General Scott Stewart also referenced Plessy v. Ferguson in his arguments. “Our constitution neither knows nor tolerates distinctions on the basis of race,” Stewart said. “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.”

Stewart is absolutely right. Our justices have a duty to reexamine precedent and rule against it if it’s faulty. As Justice Clarence Thomas once said, “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.” 

The justices made plenty of excellent arguments during the hearing that should excite pro-lifers. Justice Brett Kavanaugh repeatedly cited his position that the issue of abortion should not be decided by the Supreme Court. The “Constitution is neither pro-life nor pro-choice on the question of abortion” and thus the issue “should be left to the people, to the states or to Congress.” Chief Justice John Roberts argued that Mississippi’s 15-week abortion ban is similar to laws in “the vast majority of other countries.” Referencing the liberal abortion laws in the U.S., which allow abortion up until birth, Roberts said, “We share that standard with the People’s Republic of China and North Korea.”

Justice Amy Coney Barrett noted that opponents of the Mississippi law are worried about the “consequences of parenting and the obligations of motherhood that flow from pregnancy.” In response to that argument, she noted the existence of infant safe haven laws, which allow a mother to give up her child at a safe location without facing repercussions.

Pro-lifers definitely have reason to be excited, and even those with pro-abortion views admit that from a strictly constitutionalist perspective, Roe was a bad legal decision.

If the right to make laws on abortion returns to the states, Indiana still has plenty of work to do in changing hearts and minds. We need you to stay engaged!

Thank you for your partnership in this work.