Legal observers within the pro-life community expressed cautious optimism Wednesday after the U.S. Supreme Court heard the most significant abortion case in decades and multiple justices indicated an openness to overturning or at least gutting Roe v. Wade.
The case involves a Mississippi law that prohibits abortion after 15 weeks of pregnancy except in situations of medical emergencies and fetal abnormality. Under the legal framework of Roe and its companion decisions, such a law is unconstitutional.
It was the first abortion-related case heard by the court since the conservative bloc grew from five justices to six with the confirmation of Amy Coney Barrett.
"It is hard to see how pro-lifers could be more optimistic about how this argument went," said Dan McLaughlin, a former attorney and a senior writer at National Review. But he cautioned: "We've had the football pulled away from us before in big cases, so take all of that with a grain of salt."
During oral arguments Wednesday, Mississippi Solicitor General Scott Stewart urged the justices to overturn Roe and return the issue back to the states.
Justice Brett Kavanaugh, a member of the conservative bloc, repeatedly recited a pro-life position by saying 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." The Constitution, Kavanaugh said in seemingly approving the argument, is "neutral" on abortion.
Chief Justice John Roberts asserted that Mississippi's 15-week ban is similar to the laws in "the vast majority of other countries." Apparently referencing the United States' liberal abortion laws – which allow abortion through all nine months of pregnancy – Roberts said, "We share that standard with the People's Republic of China and North Korea."
Barrett spoke approvingly of infant safe haven laws, which allow a pregnant mother to abandon an unwanted baby at a safe location without facing criminal charges. Barrett noted that opponents of the Mississippi law say they're concerned about the "consequences of parenting and the obligations of motherhood that flow from pregnancy" if the law stands.
"Why don't the safe haven laws take care of that problem?" Barrett asked.
Other members of the court's conservative bloc – including Justices Clarence Thomas and Samuel Alito – also asked questions friendly to Mississippi.
Stewart referenced Plessy v. Ferguson, the 1896 Supreme Court decision that upheld state-level segregation laws. It was overturned by the 1954 Brown v. Board of Education decision.
"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."
It would take five votes on the nine-member court to uphold the Mississippi law and/or to overturn Roe.
"Nothing from Justices Thomas, Alito, Gorsuch, Kavanaugh, or Barrett set off any alarm bells in my mind," said Ed Whelan, referencing five members of the conservative bloc. Whelan is a distinguished senior fellow for the Ethics and Public Policy Center.
Roberts, Whelan said, "seemed to be searching for a middle ground that would enable him to vote in favor of the Mississippi 15-week ban" without overturning Roe.
"Big picture: Kavanaugh+4 very interested in overturning Roe," wrote John McCormack of National Review. "Roberts very interested in upholding Mississippi law without overturning Roe."
Legal experts from the center and the left also said the arguments went well for pro-lifers.
"If you believe that women should have the right to choose abortion, today's Supreme Court argument was a wall-to-wall disaster," tweeted CNN legal expert Jeffrey Toobin.
If you believe that women should have the right choose abortion, today's Supreme Court argument was a wall-to-wall disaster.— Jeffrey Toobin (@JeffreyToobin) December 1, 2021
The case is Dobbs v. Jackson Women's Health Organization.
Photo courtesy: ©Getty Images/Chip Somodevilla/Staff
Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.