The days of abortion on demand could be numbered. The Supreme Court heard oral arguments Wednesday in a case in which the high court could overturn its 1973 decision in Roe v. Wade and send power back to the states to determine their own abortion laws.
“I feel like the Supreme Court right now has a very clear, intellectually honest blueprint to overturn Roe v. Wade, restore the Constitution to its proper meaning and understanding, and return the issue of abortion back to the people of America,” says Denise Harle, a senior attorney at the Christian legal aid group Alliance Defending Freedom.
The case of Dobbs v. Jackson Women’s Health Organization stems from a Mississippi law, passed in 2018 but not in effect, which aims to ban most abortions after 15 weeks of pregnancy. Mississippi’s only remaining abortion clinic immediately challenged the lawsuit. Now, the Supreme Court again is considering the constitutionality of abortion.
Harle, who directs Alliance Defending Freedom’s Center for Life, joins “The Daily Signal Podcast” to break down the oral arguments heard by the nine justices and predict what the future holds for Roe v. Wade.
Virginia Allen: I am so pleased to be joined by the senior attorney and director of the Center for Life at Alliance Defending Freedom, Denise Harle. Denise, thank you so much for being here today.
Denise Harle: Oh, my pleasure, Virginia. Thanks for having me on.
Allen: Well, Denise, it has been a wild week in Washington, D.C. On Wednesday, the Supreme Court heard oral arguments for a case called Dobbs v. Jackson Women’s Health Organization. The case really stems from a Mississippi law, which was passed in 2018, and it banned abortions after 15 weeks of pregnancy. What exactly was the big question that the justices were considering in this case, Denise?
Harle: So, there were two big questions, basically. The bottom line really is whether to overturn Roe v. Wade. And that is huge. This is the first and best opportunity that the nation has seen to do that. And that was squarely at issue in all the discussions today. Beyond that, the questions the court was grappling with was of this viability standard.
So, just a little bit of legal background, Roe v. Wade, and then the case interpreting it, Planned Parenthood v. Casey in 1992, set up essentially a viability role, which is that states cannot protect unborn children before the point of viability.
Now, in Roe v. Wade, 1973, that was a 24- to 28-week range. By the time of Casey, it was 23 to 24. Now, we see babies surviving at 21 or 22. So it’s a moving target, certainly not a constitutional basis.
And so, one of the biggest questions the justices were asking is, where does this come from? It’s not in the Constitution, what is the legal basis for it? And it seems arbitrary because a baby, what’s the difference between 15 and 21 weeks, for example?
And what was very interesting was that the abortion clinic advocate did not have an explanation or a justification, simply said that it’s a principled line and we followed it for 50 years, and so we should stick with it. And I think it was a very unsatisfying answer.
Allen: So they were really essentially just saying, “Well, this is the precedent, so we should continue with the precedent instead of providing an additional argument”?
Harle: That’s right. And that’s a problem for a couple reasons. One is that the Supreme Court in its cases has repeatedly affirmed that states do have an important interest in protecting what they’ve called vulnerable and innocent life from the moment of conception.
So the Supreme Court has actually said in multiple cases that states have important interests in protecting maternal health and unborn life from the outset of pregnancy. That is and has always been a bit of a conflict with Roe and Casey’s holdings.
The other piece of the puzzle today was this question of stare decisis, which is the Latin term for whether to just follow the precedent. And as several justices pointed out and the Mississippi solicitor general pointed out, the Supreme Court, when it has made an erroneous decision, fixes that decision—Brown v. Board of Education overruling Plessy v. Ferguson.
There are fantastic examples of where the Supreme Court was wrong. And the best thing to do is to correct it as soon as possible so that the Constitution is put back in its proper place in America.
Allen: And that was, like you say, that was the central argument of Mississippi Solicitor General Scott Stewart. He made the case that the right to abortion, it’s not explicitly written in the Constitution. How strong did you think his argument was, the argument of the solicitor general? And do you think it was strong enough that we could see Roe v. Wade overturned?
Harle: It was so strong, in fact, that the other side did not even dispute it. I did not hear anyone, including a liberal justice or the U.S. solicitor general or the abortion clinic attorney, attempt to argue that there is a right in the Constitution that secures abortion.
All they said was, “We’ve been relying on this for almost 50 years and women need it for equal participation in society.” No one pointed to a place in the Constitution where this right to abortion came from. So I think that was very compelling.
The other part of Mississippi’s argument that was impactful was that there’s no middle ground that the court can take without causing all kinds of new problems.
So basically the options are overturn Roe completely or continue to stay in this horrible mess that we’ve seen created where not only have 60 million lives been lost to abortion, but our nation has been locked in this debate and this deadlock where the voters and the American people can’t enact their policy preferences to show a support for life simply because of a decision made in 1973 by seven of the nine men on the court at that time. And so I think it’s teed up to be a very clean decision between overturn Roe or don’t.
Allen: Justices [Neil] Gorsuch, [Brett] Kavanaugh, [Clarence] Thomas, and [Samuel] Alito, all more conservative justices on the bench, they expressed openness to either overturning or weakening abortion access under Roe v. Wade and Planned Parenthood v. Casey. Were there any specific questions or comments that the conservative justices raised that surprised you or were of particular interest to you?
Harle: There were several. I think one of the interesting things that Justice Kavanaugh pointed out, in several of his questions, the subtext was, wouldn’t it be better for the courts to just get out of the business of abortion policy?
If we overturn Roe, all it will do is say that the Constitution is neutral on abortion. And if the Constitution is silent on abortion, then each state and the voters of each state can do what they want. And it won’t be a matter of tainting the judiciary by constantly putting judges at the center of what should be a political legislative policy debate.
And I thought that was very encouraging because I think that is a clean solution. And I think it’s the constitutionally correct solution because the Constitution doesn’t say anything or even imply anything about abortion. So I thought that was a very good one.
Another thing that was interesting was that Chief Justice [John] Roberts in particular seized on some of the facts about international law on abortion. And the fact is that the U.S. is an extreme outlier in abortion policy. In fact, we’re one of only six nations in the entire world that allows abortion on demand through all nine months of pregnancy.
And so in pushing back against this idea, that viability is the proper standard, Chief Justice Roberts pointed out that the international human rights consensus is that it’s an appalling policy.
I think it’s more than 90% of countries limit abortions at 15 weeks. And so, Mississippi is attempting to be in line … with what is a very commonsense recognition, that life is a fundamental human right.
Allen: Well, and Chief Justice Roberts, he does tend to be a little bit more of a swing vote on the court. Given those comments and remarks he made, do you have a sense of how we might see him vote on this?
Harle: Chief Justice Roberts invited the abortion clinic advocates on several occasions to attempt to offer a middle ground. And in fact, he did that of both sides, I would say, to offer some sort of more moderate solution.
And the abortion clinic really doubled down and said, “No, there’s no middle ground. Roe must stay. That’s what we’ve been relying on. That’s what we’ve been applying. And that’s the only way to go. And viability—the court said in Casey, the viability makes sense. So it still makes sense because nothing’s changed.” And that was kind of the extent of the argument.
So I think it almost would’ve been better for the other side if they wanted to offer some sort of more moderate solution. And so, it would be up to Chief Justice Roberts to try to draft something that neither of the sides was arguing. And really that, again, doesn’t have a basis in the Constitution.
Allen: And what about from the three more liberal justices on the bench? Were there any questions or comments that they made that you were particularly fascinated by?
Harle: Their questions were very heavily focused on stare decisis.
Allen: And that’s the idea of precedence again, right?
Harle: That’s the idea of precedent. Thank you. And really trying to push on the idea of reliance.
In fact, Justice [Elena] Kagan said something that was interesting, that almost sounded like a concession, I think, which is that she said nothing has changed since Roe and Casey that would undermine our reliance on them. And I think that’s just completely untrue based on facts of science, medical technology, just society.
So thinking about, for example, women now are the majority in medical school and law school. Women are able to work remotely, get college degrees remotely, single moms have all sorts of fantastic support from everything from pregnancy center networks to churches to great policies, different government policies that help support moms raising their children.
And so between that and the fact that contraception is basically widely available, almost or completely free, and almost 100% effective, there’s not that same reason why women might expect all of these unplanned pregnancies. In addition, we know so much more about the unborn child and this I think is the biggest thing that’s changed since Roe and Casey that should just stop us in our tracks.
A 15-week-old child in the womb can hiccup, has had a heartbeat for weeks, can taste what her mom eats, can move around and kick. She has eyes and eyelids, she’s opening and closing her fingers. And we see this on 4D and 3D ultrasounds now. If you look at a ultrasound from 1973, when Roe was decided, it looks like a weather radar or an ink test or something.
We do fetal surgery now and are saving the lives and the health of babies in the womb at the earliest age. We know about fetal pain and we can see babies now react to stimulus and pain on ultrasounds. And so we didn’t have that window to the womb then, but we know it now and it would be foolish and ignorant of us to disregard that clear picture of humanity that we have now.
Allen: So now, what is the process moving forward for the justices? What does it look like now that they’ve heard the oral arguments from both sides? What is their process in making their decision?
Harle: And that’s a great question. Let me give a caveat now, which is that from all of the takeaways we want to have from the oral argument, most of the decision-making has not even begun. This is a long process. A lot can change, a lot is in flux.
So what will happen in this case is the justices will conference the case on Friday, meaning they will each have an opportunity to share with each other their vote and, essentially, the reasoning. At that point, the most senior justice in the majority will assign the majority opinion to a writer. And the most senior justice in the minority will assign the dissent. At that point, the opinion-writing process begins.
Justices who aren’t writing the majority or the dissent also have the opportunity to write a concurring opinion. I suspect we will see several concurring and dissenting opinions, probably, in this case.
And then eventually, they begin to circulate their opinions to get the other justices to sign on. They have conversations with their clerks. They go back to the briefing. They go, perhaps, back to the oral argument transcript. It’s a long process.
Normally, the most high-profile, difficult cases, and I would qualify this as one … they come out at the end of the term. So we would see a decision by the last weekday in June of 2022. It’s possible it could come out earlier, but they will not release the opinion until all of the dissent or dissents and concurrences are written and finalized.
So, it’s a whole package deal. And we have to wait on all the justices to get all of their thinking on paper and get all of the agreements and disagreements before we’ll see an answer. So I would would say, likely, June, could be surprised a little bit earlier, but it’s probably going to take several months.
Allen: So as an attorney, given the fact that you watched the legal arguments today, how optimistic are you for the future of this case? What do you think the outcome is going to be? … Obviously, we can’t know for sure or how the justices will rule, but in your legal professional opinion, what would be your best guess?
Harle: And some of the justices are very good about not tipping their cards and almost even sort of doing some misdirection and asking devil’s advocate-type questions. So again, a lot can change in the thinking and the writing process after today.
I think what was most encouraging to me was I didn’t hear any real pushback or alarm bells from, I would say, at least four of the more conservative justices seemed to really be tracking with Mississippi’s arguments.
I think a couple of the justices, maybe more in the middle, were feeling around for whether there was a middle path, but on the whole, I suspect that the pro-life movement and all of Mississippi’s supporters today feel that the arguments went very well. They feel extremely encouraged.
And I feel like the Supreme Court right now has a very clear, intellectually honest blueprint to overturn Roe v. Wade, restore the Constitution to its proper meaning and understanding, and return the issue of abortion back to the people of America so that we can enact our policy preferences. And a majority of Americans don’t think that abortion should be permitted, certainly not late term.
So I think there’s a very clear legal roadmap that can be done very cleanly. And I am hopeful that the court will do the courageous thing, which is to overturn precedent in this case and correct that error.
Allen: Denise Harle, senior counsel and director of the Center for Life at Alliance Defending Freedom. Denise, thank you so much for your time. We really appreciate hearing your expertise on this.
Harle: You bet. Great talking with you. Thank you
Originally published by The Daily Signal. Republished with permission.