Russell Shaw Waiting for Dobbs

Dec 30, 2021

The Supreme Court’s long-awaited decision on abortion almost certainly is a done deal. The justices and their clerks know the result but they aren’t letting on, while the rest of us won’t find out for another five months.

That is not to say the outcome is now unalterable, since Supreme Court decisions aren’t final until the court announces them. Thus prayer for a prolife ruling remains very much in order. But the court heard Dobbs v. Women’s Health Organization argued December 1, and two days later the justices, following their usual custom, met privately to tell one another where they stand and begin the opinion-writing process. 

Will that really take five months? Yes, it will. It involves research, drafting a majority opinion, circulating that document among the other justices for input and revision, writing and circulating the principal dissenting opinion, and the writing of an unknown number of concurring and dissenting opinions by individual justices (alone or joined by others). 

Since all the justices probably will want to tell the world--and the history books--where they stood in this case, the process could take a while. And bear in mind that the court meanwhile will be following the same procedure in all the other cases to be decided this term.

Now, let’s suppose that, as many observers think likely, the result in Dobbs v. Women’s Health Organization is a pro-life victory. It could take either of two forms: first and preferable, overturning the two key pro-abortion decisions--Roe v. Wade (1973), which invented a previously unknown constitutionally protected right to abortion, and Planned Parenthood v. Casey (1992), which reaffirmed the central holding of Roe--or, second and less desirable, permitting states to impose meaningful limits on abortion while straining somehow to retain the framework of Roe and Casey. (Involving as it does a  Mississippi law barring nearly all abortions after the 15th week of pregnancy, Dobbs could provide an opening to the second result.)

If the Supreme Court delivers either sort of ruling, pro-abortion forces will immediately redouble pressure for court packing--adding four new pro-abortion justices (five if Justice Stephen Breyer retires) with the aim of regaining the upper hand in that setting. In that case, self-proclaimed opponents of politicizing the court will be advocating its radical politicization. Prolifers must immediately let their senators and representatives know they want no part of that.

Beyond the court packing tussle, prolifers must look to the November elections just as their pro-abortion opponents surely will do. Hundreds of seats in Congress and state legislatures will be up for grabs, and it is imperative that as many of them as possible be filled by prolife legislators (and as few as possible by pro-choicers).

The reason is obvious. A Supreme Court decision leaving abortion up to the states, as either outcome described above will do, will shift the abortion wars more than ever to state legislatures. Winning prolife legislative battles will be easy in some states--the estimate is usually in the 20s--and, as matters stand, virtually impossible in others. Prolifers must fight the good fight in both.

Well-intentioned people sometimes say the prolife movement should be less political and concentrate on education and persuasion while supporting measures to help women under pressure to have an abortion. A better approach, however, is not either/or but both/and: more political activism, plus more education and persuasion, plus more help to women. Admittedly that’s asking a lot. But where the lives of unborn children are involved, an awful lot is at stake.

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