Josh Hammer / May 21, 2021

Legal Conservatism’s Moment of Truth: Abortion Returns to the Supreme Court

If the movement cannot overturn Roe or even make a severe dent in Casey, the verdict will be in.

In agreeing to hear the Mississippi abortion case of Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court earlier this week placed directly in its crosshairs the court’s two foundational modern abortion precedents, Roe v. Wade and Planned Parenthood v. Casey. In preparing to decide whether all restrictions on pre-“viability” abortions are unconstitutional, as the court’s order for a writ of certiorari indicates it will do, the court is teeing itself up for a potentially landmark — or potentially grievously disappointing — ruling next term. In girding itself to rule in Dobbs, and by extension ruling on the life-or-death fortunes of countless unborn children on this bedrock civilizational justice issue, a nominally conservative court is set to also decide the life-or-death fate of the legal conservative movement itself.

In order to uphold Mississippi’s law, a fairly straightforward 15-week abortion ban — a regulative time frame viewed as “strict” by abortion’s tendentious apologists but positively generous by European standards — with customary dispensations for severe fetal abnormality and the life of the mother, the court’s right-leaning justices will need to summon their innermost convictions and channel the solemnity of their constitutional oaths against what will be an unprecedented, full-spectrum intimidation campaign and disinformation onslaught. In the 13 months from now until the court’s anticipated ruling in June 2022, the sprawling edifice Andrew Breitbart called the “Democrat-media complex” will go into overdrive like it never has before, hoping to cow Justice Brett Kavanaugh and other perceived “gettable” center-right justices into submissive genuflection before their would-be ruling class overlords.

The progressive left’s foremost pagan sacrament, after all, is on the chopping block — that is, the “right” to murder one’s own child in utero. And the left will leave no stone unturned in its quest to preserve modern constitutional law’s peculiar codification of that “right.” That judicially fabricated codification, furthermore, is so maximalist that the land of the free and the home of the brave is at present time one of only seven countries in the world — alongside such human-rights luminaries as China, Vietnam and North Korea — that permits elective abortion after 20 weeks’ gestation.

Pro-lifers must steel themselves for what is now to come. The Biden-Harris White House will likely commence a prolonged public relations campaign, hectoring Alexander Hamilton’s “least dangerous” branch about its lowly place in similar condescending manner as did President Barack Obama prior to Chief Justice John Roberts’ face-saving gambit in the first Affordable Care Act case, National Federation of Independent Business v. Sebelius. Senate Majority Leader Chuck Schumer, D-N.Y., and House Speaker Nancy Pelosi, D-Calif., will relentlessly beat the drum on court-packing, threatening retaliation against an alleged “right-wing court” that has the temerity to conceive of the inherent dignity of unborn children as Abraham Lincoln conceived of the inherent dignity of Blacks in his 1854 Peoria speech: “If the Negro is a man, why then my ancient faith teaches me that ‘all men are created equal’; and that there can be no moral right in connection with one man’s making a slave of another.”

The court’s grant of its writ of certiorari in Dobbs also comes at a time of intellectual upheaval within the broader tent of legal conservatism. Especially in the aftermath of Justice Neil Gorsuch’s June 2020 defection in the Title VII case of Bostock v. Clayton County, many conservatives have taken to asking whether originalism, the predominant right-of-center jurisprudential methodology for four decades, is actually generating substantively conservative results as it is usually theorized and promulgated. I count myself among the skeptics, co-drafting a manifesto in March advocating for “A Better Originalism” and developing a legal framework I call “common good originalism.”

If the court in Dobbs fails to so much as modify the Casey “undue burden” legal standard to permit a much broader swath of state-level abortion restrictions, at minimum, then a putatively conservative legal conservative movement and a putatively conservative Supreme Court will have failed on the single most important issue they confront. If the impending left-wing/media/Hollywood-driven intimidation and disinformation campaign succeeds in peeling off Kavanaugh or another “gettable,” thus securing a court majority alongside Roberts and the three liberal justices to overturn Mississippi’s law, then it is unclear at best what kind of “legal conservative movement” can possibly emerge from that rubble.

The legal conservative movement was primarily founded on this issue. If, after all these decades and finally securing this right-leaning court majority, it cannot overturn Roe or even make a severe dent in the hopeless muddle that is Casey, the verdict will be in. It will not be pretty. The movement will have failed.


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