Overturn Roe v. Wade? Why It Might Happen This Time
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On Dec. 1, the U.S. Supreme Court will hear arguments in the abortion case that some say is the most important since the landmark 1973 Roe v. Wade decision.
In fact, Dobbs v. Jackson Women's Health Organization could overturn Roe, plunging the U.S. into a post-Roe landscape.
"This is the case for everyone to be watching," said Americans United for Life President Catherine Glenn Foster. "Are we able to restrict abortion prior to viability in line with our neighbors in Europe, in line with pretty much the entire rest of the world because we're one of the most foremost radical nations in the entire world on abortion?"
Susan B. Anthony List President Marjorie Dannenfelser said it's a miracle that the court will hear the case and credits the public electing a pro-life president and Senate that put in place justices that would take a case designed to test Roe v. Wade.
"It's a lot of change really fast," she noted. "The positive is so glaringly beautiful that we could pass laws that will finally save the lives of unborn children. We could care for the women that are at the heart of this debate and the heart of this concern."
High Court Set to Review Mississippi Act
The high court will be reviewing the Mississippi Gestational Age Act which prohibits abortion after 15 weeks, except in the case of medical emergencies or a severe fetal abnormality.
The state of Mississippi is asking the court to uphold its law and directly challenging the precedent in Roe and the 1992 Casey v. Planned Parenthood that holds that states cannot ban pre-viability abortions, those done before a child can survive outside the womb.
"This is the first time in 30 years that the court has been explicitly asked to overturn Roe," Foster explained. "Back in 2019, the chief justice said,'Well we could do it but no one's asking.' Well now, we're asking,' Mississippi explicitly asked in the brief. The 20-plus states that joined Mississippi, they're asking."
Roe declared the right to privacy includes the right for women to choose abortion and it warned that denying them abortions would bring hardship. In Casey, the court argued that women had come to rely on it.
But abortion foes oppose the notion that abortion advances women's economic and social success. An amicus brief filed by 240 women scholars tells the court there's no consistent correlation between women's professional and educational accomplishments and abortion.
"And certainly in the absence of correlation, there can be no causation," they write.
"To tell us that we can't just survive, that we can't be women in America without legalized abortion, what an offensive notion," said Foster. "We should be able to do that. That's what we're built for."
In Casey, the court used "stare decisis," the legal principle that courts must follow precedent, to justify Roe. But Foster and many other scholars insist there's a host of reasons why it should be overturned including social unrest which shows that the case is not settled.
Foster recalls what Supreme Court Justice Amy Coney Barrett said during her confirmation hearing.
"She was asked if she believed Roe was a settled issue and she said 'well I keep getting questions about Roe which indicates to me that it's not settled,'" Foster recalled.
Decision Expected in June
The court is expected to issue its decision next June and even if it does not overturn Roe it could still uphold the Mississippi law and signal to states that the door is open for more restrictions.
Foster and Dannenfelser, along with numerous other pro-life organizations, are preparing for a variety of outcomes, including an overhaul.
"I talk to governors every day," said Dannenfelser, acknowledging that a post-Roe America will look to the states for direction on abortion. "The people who really are focused on this are the governors of this country and they are the new leaders of the pro-life issue."
She's especially mindful of the handful of states with so-called trigger laws that are expected to immediately outlaw abortion if Roe is overturned. They'll need extra political and legislative help along with pumped-up services for women.
The Susan B. Anthony List is compiling a massive database to connect pregnant women and new moms across the country with everything they need from pre-natal care to diapers and daycare.
For Foster, the work is personal as well. She had an abortion 20 years ago.
"I know what it's like to sit in that waiting room and feel so conflicted and the feelings of fear and helplessness and just totally out of control," she said. "I know what it's like to ask for the ultrasound and be denied. I know what it's like to try and get up and leave and be denied."
Today, that experience helps to inform her work, leading a team of legal analysts fighting to advance the right to life.
"I'm thinking my child would be in college," Foster reminisced. "All those missed birthdays, all those missed achievements. It's devastating. I don't want any other woman to go through that."
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