ANALYSIS: The present court’s majority should be emboldened to overrule ‘Roe’ by its candid recognition of the two truths of the matter.

June 2, 2021

The U.S. Supreme Court finally announced May 17 that it would decide Dobbs v. Jackson Women’s Health Organization, where a Mississippi law banned most abortions after the 15th week of pregnancy because, by then, the fetus is capable of perceiving pain. 

I say “finally” because the petition for review lingered in the high court for 11 months, an exceptionally long time. I say “finally” also because the news relieved months of suspense, more keenly felt since last Oct. 26, when Amy Coney Barrett joined the Supreme Court. Countless Americans have wondered since then when the court would take a case presenting the question: Shall Roe v. Wade be overruled?

Now we know the answer. Mississippi’s lawyers told the court that Dobbs does “not require the Court to overturn Roe or [Planned Parenthood v.] Casey,” the 1992 case that reaffirmed Roe. But they also wrote that “[i]f the Court determines that it cannot reconcile Roe and Casey with other precedents or scientific advances showing a compelling interest in fetal life far earlier in pregnancy [than viability, which] those cases contemplated, the Court should not retain erroneous precedent.” Translation: Roe and Casey should then be overruled.

Dobbs will be argued sometime after the Court’s new term begins on Oct. 4. The decision may come as late as June, 2022. 

What is the court likely to do? 

The justices pledged only to answer the question recited in their one-sentence order granting review: “Whether all pre-viability prohibitions on elective abortion are unconstitutional.” 

What does that question mean?

In Dobbs, “elective” abortions exclude those sought because of “medical emergencies” pertaining to the mother or because of “severe fetal abnormalities.” These abortions are not at issue in the pending case. The court’s precedents establish that “viability” occurs about 22 weeks into pregnancy. It marks the point where, according to the Supreme Court, a fetus could be born and survive outside the womb. 

Mississippi is one of several states that have enacted prohibitions on “pre-viability” abortions in the last few years, expecting lower courts to invalidate them but hoping to breach the “viability” barrier at the Supreme Court. Some states have prohibited abortion even earlier than did Mississippi — at eight weeks, for example, when the fetal heartbeat can be detected. 

The lower courts have behaved as expected: All of these “pre-viability” bans have been declared unconstitutional. “Unconstitutional” here means that a law is incompatible with what the court implied in Roe and said explicitly in Planned Parenthood v. Casey, namely, that up until “viability,” the pregnant woman must be free to choose an abortion. This holding is the target (if you will) of the question in Dobbs.

What will the answer be?

The Supreme Court could, of course, uphold Mississippi’s law while retaining “viability” as the line between permissible and prohibited abortions, by moving the line from 22 to 15 weeks. But that would be dishonest. No fetus born that prematurely could survive outside the womb. The court will instead almost certainly hold that some “pre-viability” prohibitions of abortion are constitutionally permissible, including Mississippi’s 15-week line of separation. 

Why is this answer so likely? Because the court would not take up Dobbs and pledge to answer the question if it were going to invalidate Mississippi’s law. The Supreme Court chooses the cases it wants to hear. It takes four votes to grant review. The trio of “pro-choice” justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan — would not be among the four (or more) who voted to hear Dobbs. The lower courts struck down the Mississippi law, which is the result these three would favor. They would be willing to affirm those lower-court decisions. But they could not expect to attract the fourth and fifth votes they would need to do so. These pro-abortion justices would oppose review in Dobbs because they cannot expect to win it. 

The Supreme Court took up Dobbs because at least four of the six justices who believe that Roe v. Wade was wrongly decided want to decide the fate of Mississippi’s fetal-pain law. It is nearly inconceivable that they did so to declare that it is unconstitutional. 

Even if only four (of the six) wanted to hear the case, those four would not vote to do so unless they figured on a fifth vote to uphold the Mississippi law. Their thinking would be this: It is better to say nothing and let the lower court rulings stand without comment than to risk having the Supreme Court add one more anti-life precedent to an already ghastly body of law. Thus, they choose this case expecting to muster a majority to breach the “viability” wall.

The Supreme Court is not hearing Dobbs, though, just to give a thumbs-up to this one Mississippi law. The justices who voted to hear the case want to say something more widely significant than that. At a minimum, they must give some principled set of reasons for their decision in Dobbs, bases that transcend the result in that particular case. 

The most obvious possible outcome is for the court to say that some abortions may be banned before viability but that others may not be. But then the justices would have to decide how those two tranches of abortions are to be defined and distinguished. This would entangle the court even more than now in what the majority of the justices believe to be the essentially legislative, and not judicial, task of making relative judgments about worthy and unworthy abortions. It is rather clear that the justices are looking to reduce the court’s involvement with abortion law, not to increase it. Indeed, their main point over the years has been that Roe v. Wade thrust the court into the middle of a contentious moral issue without any foundation for doing so in the constitutional text or history. 

These justices are, in other words, looking for the exit ramp on abortion. It is likely that they will ditch “viability” altogether. 

There are plenty of reasons why they should. “Viability” was, in the first place, a fraud. The Roe justices were pro-abortion from the get-go. None thought that human persons really begin at conception. None thought that abortion amounted to homicide. Even the two dissenters in that 1973 case — William Rehnquist and Byron White — were what we would call today “moderately pro-choice.” 

A majority of these men started out determined to make abortion freely available for three months. They reasoned that the average, self-aware woman could and would come to know that she was pregnant, take stock of her situation and decide for or against abortion, within 90 days. Poorer, less-schooled women with limited access to good medical advice, the jurists further thought, would often need more time. How much more?

Around six months, they eventually concluded. So “viability” — the term Roe made famous but that before 1973 had almost no standing in either law or medicine — became the main criterion in the constitutional law of abortion. Its appeal to the Roe Court owed nothing to any alleged medical or biological provenance. It was rather that “viability” was a convenient proxy for implementing the court’s ethical-political judgment that six months was enough time for any woman to make up her mind to have an abortion. 

The passage of time has brought “viability” into still deeper disrepute. Almost 40 years ago, Justice Sandra O’Connor made most of the arguments against “viability” that Mississippi is now. O’Connor wrote in the 1983 City of Akron v. Akron Center for Reproductive Health case that “viability” is a wavering, contingent line: 

“As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.”

This wobbly line is also an arbitrary divide, O’Connor wrote, because it has no relation to the relevant state interest, which she described as “potential life.” 

O’Connor wrote that it “is no less potential in the first weeks of pregnancy than it is at viability or afterward. At any stage in pregnancy, there is the potential for human life.” She concluded that the “choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward.” 

The step after ditching “viability” is the hardest to predict about Dobbs. If not “viability,” what?  

The keys to what the Supreme Court should say in Dobbs lie in the truth that O’Connor expresses and in the one she suppresses. She is quite right that the relevant truth about the fetus is not change but continuity, identity. 

Even the good people who enact fetal pain or heartbeat laws know that those events do not mark the arrival of a new being, different in kind than the fetus was a day or a week or a month before. They are instead significant stages of one and the same being life, along a continuum of human development. The truth that O’Connor articulated is that there is no substantial change in the fetus from conception to birth — and beyond, for that matter. 

Mississippi is already pressing this truth. And the second, the one O’Connor suppressed: Although its petition quoted O’Connor’s words faithfully, the state erased the concept of “potential” life from its own rendition. 

Mississippi consistently maintained that a real (not “potential”) human individual comes into being at conception and is present throughout pregnancy. This plain fact is strategically woven into its argument about the state’s asserted “interest, from the outset of pregnancy, in protecting the life of the fetus that may become a child.” 

Of course, that a fetus “may become a child” does not imply or entail that the fetus is not already a human person, albeit at an early stage of development. “Potential” has no more to do with it than does the fact that a child is “potentially” an adult. 

A newborn or a 5-year-old or a college student is full of “potential,” much more yet to become than already has been. Each one of us spends his or her entire lifetime transforming one’s “potential” into “actual” gifts, taking the radical capacities we possessed even as embryos and turning them into exercisable abilities, here and now. 

The second key truth which O’Connor suppresses is, then, the presence of one and the same living human being in the womb from the moment of conception — “actual,” not “potential.” Indeed, the term “potential life” was, too, a fraud perpetrated by the Roe Court. Those justices were bent on rationalizing abortion. They would not do so while recognizing the obvious reality, which was pressed upon them by Texas’ state lawyers in 1973 as it will be by Mississippi’s in 2021, namely, that the fetus is a living human being possessed of a right to life. 

Instead, they drew a verbal curtain over that most discomforting reality. They invented a status unknown to science and to law — “potential life” — and branded the unborn child with it. Its purpose has been to make the killing more palatable. 

What, finally, is the Dobbs court likely to do?  

The court can hardly continue to give its imprimatur to Roe v. Wade. The Roe Court has been justly criticized on its own terms, for finding a constitutional right to extinguish the “potential life” within the womb, even though the Constitution nowhere bespeaks such a right and where centuries of jurisprudence treated abortion to be a crime. The present court’s majority should therefore be emboldened to overrule Roe by its candid recognition of the two truths of the matter. 

 “Overruling” Roe (as conservatives generally use that word) means leaving the states free to regulate abortion as they wish. If Mississippi wishes to prohibit all “elective” abortions, it may. If California wishes to permit them all, it may. But the Biden administration has promised to “codify” Roe if the court should overrule that case. Doing so would nullify any good effects of overruling Roe. The pro-abortion mandate of that case would remain the law of the land by dint of a national statute, rather than a Supreme Court holding. 

The only way for the Supreme Court to block this catastrophic reaction would be for it, in Dobbs, or in a subsequent case brought against Biden’s “codification” of Roe, to draw the obvious implication of the two truths we have been discussing: If the same living human being who comes to be at conception is the same being who is born nine months later, than the person whom we welcome at birth began at conception. Then the unborn child’s right to life would be constitutionally guaranteed by the 14th Amendment from the moment of conception, and Biden’s “codification” would be unconstitutional.

Gerard V. Bradley Gerard V. Bradley is a professor of law at the University of Notre Dame and was for many years president of the Fellowship of Catholic Scholars.