2022: Abortion at the Crossroads?

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Last week marks an anniversary, of sorts. On January 22, 1973, the United States Supreme Court handed down the decision in the case of Roe v. Wade. This decision found that the Constitution granted a right to abortion for women in the United States, thus overturning all state laws which regulated the practice. Since that time, over 63 million abortions have been performed in this country, but this number may be in complete.

This figure should grieve the heart of every Christian.

Each year, believers gather, march, work, and pray that abortion would end in this country. Crisis pregnancy centers have sprung up in many places to give young and vulnerable women the chance to avoid abortion. Many focus their prayers on the overturning of Roe v. Wade in the Supreme Court. Will this be the year that Roe v. Wade and its companion decisions will tossed onto the ash heap of history?

This year focuses on a case called Dobbs v. Jackson Women’s Health Organization. In 2018, the Mississippi passed the Gestational Age Act. This law banned abortion procedures after fifteen weeks of pregnancy with some allowances for medical emergency or severe fetal abnormality. The law was challenged by Jackson Women’s Health Organization in 2018 and the case was heard by the high court in December, 2021.

Could this be the case that overturns the abortion decisions? Six of the nine justices were nominated by Republican presidents. Each of those presidents were committed vocally to overturning Roe. Those six justices, called “a conservative majority” by the mainstream media could vote to uphold the Mississippi law. The state, in its petition for a writ of certiorari asking the Court to hear the case, urged the Court to overrule the abortion decisions of Roe and Casey.

A decision is expected to be announced by the end of the Supreme Court’s term in June of this year. What will that decision hold? While many pundits are expecting the conservative majority to overturn Roe, a decision may hinge on Chief Justice John Roberts. The Chief Justice of the United States has marked himself, according to many legal scholars, as an institutionalist, one who is concerned about the tradition of the law and the Court itself. The body’s legitimacy would be adversely affected, in this view, by overturning the abortion decisions. Chief Justice Roberts approach may be to convince his colleagues to apply some middle ground which allows Mississippi to keep its abortion law without a wholesale change in abortion jurisprudence. Mississippi’s law itself does not call for gutting Roe and Casey. A final decision influenced by Roberts may focus on this.

Does the announcement by Justice Stephen Breyer of his retirement affect the Dobbs case? Justice Breyer’s intention, at this point, is to retire at the end of the term in June. However, standard Court practice is for decisions to be taken and the majority opinion assigned almost immediately after the oral arguments are made. So, the majority opinion in this case is already being written, along with the dissenting opinion and any additions or concurrences the justice wish to make. The impending confirmation controversy of the successor to Justice Breyer should not affect this case.

Is this the year which begins a “post-Roe generation?” In all likelihood, abortion jurisprudence will be given another decision which will limit, but not ban, the procedure. The strategy of pro-life groups and politicians to chip away at the regime of Roe and Casey through limitations and restrictions will continue. Each law and limitation will be challenged and each case will wind its way through the judicial system ending at the Supreme Court.

And we will have this discussion again.

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