Snatching Death from the Jaws of Life

There is great hope today that five of the Supreme Court Justices are willing to overturn Roe, or at least chip away at it. That is precisely why states are passing legislation that they know violate Constitutional standards as currently enunciated, hoping to have the Supreme Court review the “unconstitutional” law and redefine what is Constitutional when it comes to abortion restrictions. What the pro-life optimists seems to ignore (besides the lack of assurances from most of the Justices that they actually disagree with Roe), is that the Supreme Court’s procedures weigh against them ever reviewing a law that broadly prohibits abortion. Questions of constitutional law only come before the Supreme Court if at least four Justices issue a writ of certiorari agreeing to review a lower court case. Usually “cert” is only granted when there is a “circuit split” (the federal appellate courts for different parts of the country have arrived at contradictory interpretations of the same or similar laws), or there is an urgent question of unsettled law. But, as the Justices have repeatedly noted in confirmation hearings, Roe is settled law. A circuit split is impossible, as the appellate courts are required to follow precedents of the Supreme Court. Any prohibition on abortion that goes beyond late-term and does not protect the life, health, and privacy interests of the mother will be invalidated at the lower court level, and that would normally be the end of the judicial line.

Could four Justices nevertheless break tradition and grant cert to a law like the Ohio “heartbeat bill”? They could, but it would require a conscious decision to pour out a can full of paint remover in the super-heated atmosphere that already exists due to the increasing tension between Republicans and Democrats on the issue of abortion. Usually, when the Supreme Court has reversed course on a momentous social issue, it has gotten behind what was already a consolidating consensus and then pushed it on the rest of the country, as it did with school desegregation and same-sex marriage. I think it highly unlikely that mild-mannered Justices Alito, Roberts, or Gorsuch would have the appetite to defy 80%+ of U.S. voters who think abortion should be legal under some or all circumstances. Nor would it be a good look for the newest Justice, with lingering questions about a history of sexual assault, to affirm abortion restrictions without exception for rape. The easy thing to do is let lower court decisions lie, as they do 98-99% of the time.

If the Justices were to stick their necks out and grant cert with intent to allow more abortion restrictions, it would likely be for a law that merely nudges the envelope, such as the state-level “Pain Capable Unborn Child Protection Acts” that prohibit abortion after 20 weeks, which have been found unconstitutional in a couple of states but have not been invalidated in others. The Ohio “heartbeat bill,” on the other hand, would be an improbable leap from a ban with majority support to one with majority opposition.

That is, unless the rightward shift of the “pro-life” Overton Window causes such public alarm and tension that the Court decides to affirmatively cut off conjecture about a “slippery slope” in this direction. Indeed, the four liberal Justices could decide to take cert on a hardline anti-abortion law. As the saying goes, bad facts make bad law. The Supreme Court could look at gathering steam behind misogynistic prohibitions in certain state legislatures and conclude that the states need a smack-down for laws that deny women not only a shadowy privacy interest, but threaten their equal protection under the law for their rights to life and liberty. It would only take a single “presumed pro-life” Justice to join the liberal wing of the Court to put “reproductive rights” on even stronger footing than the slushy reasoning of Roe and Casey.

Will the pro-life movement snatch defeat from the jaws of victory? Will it promote policies that treat maternal death as an acceptable consequence of anti-abortion purity? Will virtue-signaling take precedence over realistic means for saving more maternal and fetal lives? Or will influencers of pro-life voters and legislators wake up to the dangerous waters they are veering into and steer the ship back toward center, repudiating proposals like Ohio’s HB 565? Let us pray.