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December 3, 2021

In Brief: The Supreme Court Hears Dobbs

If the justices follow the Constitution and do their jobs, Roe will soon take its rightful place on the ash heap of history.

The tone of questions and comments during hearings in the big abortion case before the Supreme Court yesterday have many pro-lifers hopeful of an incredible outcome. Former federal prosecutor Andrew McCarthy lends his legal expertise to the big question of whether the Court will actually overturn Roe. He begins by wondering, “Will the big fake cow them again?”

In this instance, “them” is Chief Justice John Roberts and the Supreme Court he leads, in particular the Court’s newest conservative members, Justices Neil Gorsuch, Bret Kavanaugh, and Amy Coney Barrett. We could, however, be talking about any faction of well-meaning right-of-center Republicans, the type who consistently rationalize their way into solidifying the Left’s Fabian advances. Whether it’s out of some warped sense of duty to maintain “stability,” or the delusion that they are preserving the legitimacy of their institution, or a desire to “show that we can govern” by being collegial (an obligation that somehow never burdens progressives), they find a way to prioritize their craving for the progressive ruling class’s affection — however reliably unsatisfied it remains — over doing their jobs the way fidelity to the Constitution would demand.

The “big fake,” of course, is the prediction — the assurance — that following the Constitution will have immediate, apocalyptic consequences. So it is with Dobbs v. Jackson Women’s Health Organization, the most significant abortion case the Court has heard since Planned Parenthood v. Casey nearly 30 years ago. The Roberts Court, with its reputed supermajority of constitutional conservatives, heard oral arguments in Dobbs on Wednesday morning, and a ruling is expected at the end of the Court’s term in late June. The case demands that the Court grapple with its constitutionally illiterate and institutionally imperious rulings in Casey and Roe v. Wade (1973).

This time, the big fake is the assertion that if the Supreme Court “bans” abortion, the practice will be consigned to back-alley quacks and American women will revert to suppressed-caste status in American economic life.

Of course, he says, “None of these doomsaying predictions is ever remotely plausible.” Why?

In reality, the Supreme Court has no power to “ban” abortion. If it renounces the jurisprudential malpractice that is Roe, the Court will simply be saying what has always been apparent: The Constitution has nothing to say about the procedure, neither mandating nor prohibiting access to it. Like most matters, it is left to the states to regulate.

Obviously, pro-lifers hope to ban or regulate the barbaric practice of abortion everywhere, but we’ll have to win one state at a time. This legal reality is also the one the Left most readily distorts.

In the narrowest sense, the Roe Court was profoundly wrong to create a fundamental federal “right” to abortion out of thin air. In a broader sense — and in particular for those who, like the chief justice, obsess over the Court’s reputation — the Court’s decision to transform itself into a rights-manufacturing super-legislature that could be pressured politically into giving the Left what could not be achieved democratically was indefensible. It has centralized and thus intensified the toxicity of our politics, damaging the judicial-confirmation process — and the notion of what a judge’s job is — perhaps beyond repair.

Let’s say the Supreme Court makes the correct ruling that progressives vehemently insist would cause the sky to fall, decreeing that Roe and thus Casey were wrongly decided. Let’s say the justices hold that the Constitution does not guarantee a right to kill the unborn up until some magic moment that medical advancement will continue to render arbitrary. What will happen?

Substantially, nothing will happen. That is why it’s a big fake. Blue states will enact highly permissive abortion laws. Red states will tightly regulate abortion to the point that it was available only as a dire measure when necessary to save the life of the mother. The vast majority of states in between will mirror what the American people seem generally to believe — abortion should be discouraged but not outlawed — and regulate accordingly. Since we are the richest, most mobile society in history, with a political class that would find ways to subsidize abortion for the needy regardless, no woman who wants an abortion will be unable to get one.

Life will go on mostly as before. The disappearance of Roe will barely be noticed. The federal courts will return to being what they should always have been on this matter of democratic self-determination: Irrelevant.

And the Supreme Court will increase its integrity by removing itself from a political question. McCarthy, however, says he’s “skeptical” this will be the outcome, primarily because Roberts is too concerned with the wrong considerations for the Court. For now, all we can do is wait and pray.

National Review subscribers can read the whole thing here.

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