The Pro-Life movement is energized by the confirmation of Amy Coney Barrett to the Supreme Court of the United States (SCOTUS), anticipating that the end of Roe v. Wade may finally be within reach.
Neither “abortion” nor “the right to privacy” appear in the Constitution, nor does any other legal justification for abortion. Nevertheless, in 1973 nine unelected judges concluded preborn children are a disfavored class of individuals who may be legally targeted for destruction in our constitutional republic, a pure act of judicial usurpation. 1973 marked a dark year in which the universal human Right to Life was eviscerated by our Supreme Court.
Nearly 50 years later, the Pro-Life movement remains undeterred and focused.
Where we are now
Roe v. Wade fabricated a fundamental right to abortion in the fabricated “penumbra” of the Constitution. In his majority opinion, Justice Harry Blackmun used privacy and scientific ignorance as a pretense for legal abortion throughout all nine months of pregnancy. Roe’s companion case, Doe v. Bolton, established a mother’s health exception so wide as to preclude any state law prohibiting abortion. In these 1973 decisions, SCOTUS made killing preborn children legal until the moment of birth.
This legal standard remained until SCOTUS decided Planned Parenthood v. Casey in 1992. The court affirmed Roe’s central premise that the Constitution generally protects a right to abortion but found Justice Blackmun’s reasoning faulty. In 1992, SCOTUS cast the right to abortion in a different framework: fetal viability and undue burden. Abortions after viability may be regulated or proscribed insofar as a state has a compelling interest in protecting fetal life, but prior to viability, a state may likewise pursue this interest but cannot impose an “undue burden” on a pregnant woman seeking an abortion.
Because of this vague standard, SCOTUS and lower courts have spent much of the last few decades litigating the precise boundaries of Casey, the parameters of “undue burden,” and the extent to which states may regulate abortion. In 2007, SCOTUS determined that a federal law prohibiting partial-birth abortions is constitutional in Gonzales v. Carhart, concluding a state may ban a particular method of abortion to safeguard an interest in preborn life. Conversely, SCOTUS ruled against two Texas laws requiring certain regulations for abortion facilities in Whole Woman’s Health v. Hellerstedt (2016), holding that a Pro-Life law imposed an undue burden when compliance with such law outweighs the intended benefits. This burden/benefits balancing test became the means by which lower courts evaluated the merits of other Pro-Life laws.
However, earlier this year in June Medical Services v. Russo, SCOTUS undermined this balancing test. Various circuit courts have split on whether the balancing test is still the proper means to evaluate Pro-Life laws. Despite the disheartening ruling in June Medical, Chief Justice Roberts provided guidelines for the Pro-Life movement in regard to the judiciary. Pro-Life laws and lawsuits present opportunities for SCOTUS to revisit the erroneous and ethically unfounded precedent on abortion.
What SCOTUS may hear next
Several Pro-Life cases are working their way through the lower court system before reaching SCOTUS for determination.
|Case Name||State||Policy in Question||Status of Case in Circuit Court|
|Food and Drug Administration v. American College of Obstetricians and Gynecologists||Maryland||FDA authority to impose certain in-person regulations on the abortion pill during the COVID-19 pandemic.||The Fourth Circuit Court of Appeals upheld the prohibition on FDA enforcement of in-person requirements during pandemic while FDA appeals. The case has been appealed to SCOTUS.|
|American Medical Association v. Azar||Oregon||Prohibiting abortion providers and their affiliates from receiving Title X family planning funding.||The Fourth Circuit Court of Appeals invalidated the Title X rules, while the Ninth Circuit Court of Appeals upheld the rules. The case from the Ninth Circuit has been appealed to SCOTUS.|
|Jackson Women’s Health Organization v. Dobbs||Mississippi||Prohibits abortion at 15 weeks post-fertilization||The Fifth Circuit Court of Appeals ruled against the abortion ban. The case has been appealed to SCOTUS.|
|Whole Woman’s Health v. Paxton||Texas||Dismemberment Abortion Ban||The Fifth Circuit Court of Appeals three-judge panel ruled against the abortion ban.|
Click here for additional details on each pending case that could potentially reach SCOTUS (LINK).
Of all these cases, the Texas case on the Dismemberment Abortion Ban is the best vehicle to force SCOTUS to consider the fallacious precedent of Roe, since this case could establish a circuit split. In Whole Woman’s Health v. Paxton, the United States Court of Appeals for the Fifth Circuit affirmed a district court ruling invalidating the Texas Dismemberment Abortion Ban, which prohibits tearing a living preborn child from his mother’s womb limb by limb. The State of Texas is expected to appeal en banc, meaning all 17 judges of the circuit court would hear the case. Two circuit courts blocked dismemberment bans from Kentucky and Alabama. If the Fifth Circuit were to rule in favor of the Texas law en banc, SCOTUS would be forced to hear the case. The Dismemberment Abortion Ban is the exact kind of case Texas Right to Life wants before SCOTUS. This law poses specific legal questions pertaining to the state’s interest in preborn life and thereby challenges SCOTUS’ abortion precedent. In the past, Pro-Life cases have focused on regulating the abortion procedure or the abortion industry, rather than banning abortions outright. Both Mississippi’s 15-week ban and the Texas Dismemberment Abortion Ban employ the proper legal strategy to undermine Roe.
What Texas can do now
The Texas Legislature must pass targeted Pro-Life laws even while abortion litigation ensues. Forcing a circuit split on a dynamic legal question is critical, and there is still room for Texas to be instrumental in that strategy.
In 2019, SCOTUS denied a hearing to an Indiana law prohibiting abortions due to the preborn child’s race, sex, or potential disability. Justice Clarence Thomas asked states across the nation to pass a similar law themselves, prompting a circuit split and forcing SCOTUS to hear the case.
In 2019, the Texas Senate passed a similar bill (PreNDA), but the bill died in the House. In 2021, Texas can correct this mistake by passing PreNDA as part of the Texas Abolition Strategy, a bill that encompasses PreNDA, heartbeat legislation, and a ban on all other abortions. This piece of legislation is carefully designed to challenge SCOTUS’ erroneous abortion precedent and to cause a circuit split. Texas can lead the fight by directly attacking the faulty foundation upon which Roe is built. PreNDA is just the first step.
At some point, Justice Amy Coney Barrett will hear and rule on a Pro-Life law that will weaken or even dismantle Roe. Perhaps that case is pending a hearing before SCOTUS already, is in the judicial pipeline, or, perhaps, the case will arise out of legislation yet to be filed. At this hopeful moment, the Pro-Life movement can and must move boldly forward in challenging SCOTUS abortion jurisprudence.