Pro-Life Attorney: “All Indications are the Supreme Court is Seriously Considering Overturning Roe”
Opinion | Tony Perkins | Dec 6, 2021 | 7:53PM | Washington, DC
The Supreme Court arguments may be over, but the speculation over what happens next is just beginning. A ruling on abortion in June could mean a lot for the midterms in November. But which side stands to benefit? A lot of that depends on what the justices decide — and there are plenty of scenarios, legal experts explain.
Reading the tea leaves on any Supreme Court decision is tricky business, but on this case, Supreme Court attorney Erin Hawley thinks the justices left plenty of clues behind. The Alliance Defending Freedom senior counsel (and wife of Senator Josh Hawley, R-Mo.) said she couldn’t have been “more pleased” with the oral arguments. As someone who’s clerked at the court, litigated before the court, taught law, and worked at the Justice Department, Hawley certainly knows what she’s talking about when she says the justices were receptive to pro-life arguments.
“I was really pleased with the questions asked by Justice [Brett] Kavanaugh, by Justice [Amy Coney] Barrett, and the Chief Justice [John Roberts] as well… [I]t’s always so difficult to predict the Supreme Court. But all indications from oral arguments were that the Supreme Court is seriously considering overturning Roe versus Wade.”
In her mind, there are three possible outcomes from the case, which she explained in detail on “Washington Watch.” The first one, which she called “the one that I most definitely hope the court takes” is overruling Roe v. Wade and Casey v. Planned Parenthood.
In her mind, Wednesday’s argument showed that “this is the direction a number of Supreme Court justices are leaning.” Justice Kavanaugh, in particular, insisted more than once that the Constitution is neither “pro-choice nor pro-life.” And, given that fact, he said, shouldn’t the court “be scrupulously neutral as to abortion and return that issue to the people so that states can protect life?” To Hawley, “this strongly indicates that he’s tired of the justices being in this position of having to legislate and create rules that are extra constitutional.”
If the court doesn’t strike Roe or Casey down, there are a couple of other options — like upholding Mississippi’s 15-week ban on abortion and limiting the ruling to just one state.
“Mississippi has a really common sense law…” Hawley insisted. “[It protects life] when the procedure is especially brutal, when babies can do things like smile and open and close their hands. They have all of their organs. They have a heartbeat. So the court could simply decide to uphold Mississippi’s law, and… this seemed to be the direction that the chief was leaning. I’m hoping he’ll go further. But he mentioned numerous times that the viability line, which currently forbids states from protecting life before 22 weeks, is completely arbitrary.”
Even the author of Roe, Justice Harry Blackmun, recognized that. So carving out Mississippi’s law as acceptable could be a middle-of-the-road position the court takes.
The last possibility is the worst scenario for pro-lifers — and the unborn: affirming Roe v. Wade and declaring that no state has the power to outlaw abortion before the fourth or fifth month of pregnancy.
“That would mean that Mississippi’s law would fall, and states would be unable to protect life at 15 weeks or 20 weeks,” Hawley warned. And yet, as so many scholars have pointed out — including Erin — “There’s simply nothing about a right to an abortion in the Constitution’s text structure or history.”
Mississippi’s legal team made that argument very convincingly on Wednesday, and if the justices agree, the issue will return to the states — where both sides are gearing up for an epic battle over the sanctity of human life.
For Democrats, who are desperate to give anyone a reason to vote for them after these disastrous 10 months, a decision overturning Roe is one way they think they could boost turnout in an otherwise dismal election landscape. Already, top Democrats are running with their sky-is-falling messaging, warning that 26 states (according to the liberal Guttmacher Institute) are “certain or likely to ban abortion if Roe v. Wade is overturned.” Their biggest hope is that the suburban moms the GOP gained over the issue of education in places like Virginia will come back to the fold over abortion.
But not everyone is so sure. While Americans might be narrowly in favor of keeping abortion legal, next to none of them support what the Democrats are calling for: taxpayer-funded abortion through all nine months of pregnancy for any reason. For years, the Left has claimed that a majority of the country wants to keep Roe v. Wade — but that’s only because most people don’t understand what it means. Once you explain that Roe doesn’t just legalize abortion — but allows the brutal killing of a fully developed child right up to the moment of birth, the country is much less enthusiastic. Only eight percent agree with that position (which happens to be the platform of the national Democratic Party).
The far-Left, who’s spent the last several decades hiding behind the courts and America’s misconceptions about Roe, is going to have to come to grips with the fact that their abortion extremism doesn’t go over well in most corners of the country. Once more states start having the hard conversations about what abortion entails, the Democratic Party will be revealed for the radicals that they are. Right now, 65 percent of the country thinks abortion should be illegal in the second trimester, the AP reports. Eighty percent want it outlawed in the third trimester. By those numbers, even Mississippi’s law is more lenient than most Americans would prefer.
That doesn’t mean the next several months are going to be easy. Even if the court does overturn Roe v. Wade, pro-lifers will have their work cut out for them. But it’s work that we’ve spent the last half century praying for the opportunity to do. “Let us not become weary in doing good,” Galatians 6 tells us, “for at the proper time we will reap a harvest if we do not give up.” Don’t lose heart. Keep sowing in prayer, and together we’ll see what God can do!
LifeNews Note: Tony Perkins is the president of the Family Research Council.