- - Friday, May 21, 2021

The Supreme Court agreed this week to hear a Mississippi case called Dobbs v. Jackson Women’s Health Organization. The case challenges the constitutionality of Mississippi’s 2018 law that prohibits abortions after 15 weeks except in the case of medical emergency or when a severe fetal abnormality exists. 

Any case that America’s highest court agrees to hear is a big deal, but Dobbs has the potential to be the most significant Supreme Court case in 50 years. It has pro-life advocates optimistically cheering for what is perceived to be the first real opportunity to weaken or even reverse Roe v. Wade. Court observers see the conservative majority potentially using this case to change the interpretation of the law of the land significantly.

Ironically, even if the case were to wipe away Roe altogether, the victory might be short-lived and the damage to the conservative cause could be greater than most realize. How is that possible? Let me walk you through the steps.

In November, Joseph R. Biden was elected as the 46th president of the United States. During his campaign, he publicly toyed with the idea of expanding the size of the Supreme Court. Any such expansion during his time as president, particularly with a Democrat-controlled Senate, would mean Mr. Biden would have a disproportionately large impact on the court. President George H.W. Bush had two appointments. Bill Clinton had two appointments. George W. Bush had two appointments. Barack Obama had two appointments. Donald Trump had three. 

Considering the ages of the current justices, it is not unreasonable to think Mr. Biden could have two appointments during his four-year term, unless four new seats were created out of thin air. Then he would have six appointments in four years, and his left wing, critical-race-theory-supporting, national-health-care-loving, police-defunding and transgender-promoting left-wing cronies would have a huge impact on legal policy for the next 30 years.

Back to Dobbs. In the case, the Supreme Court will consider a single simple yet historical question: Are all prohibitions on elective abortions before the child is viable outside the womb unconstitutional? Strict constitutionalists would argue that on issues not specifically called out in the U.S. Constitution, individual states have the right to determine their own laws. If the Supreme Court decides in that direction, pro-abortion champions fear the result would be the crumbling of the huge money the Planned Parenthood business formula generates from coast to coast. 

What are the odds that Roe v. Wade is negated? That remains unclear and no wise man will ever tell you he knows what the Supreme Court will do. It’s only been a year since the court struck down a Louisiana law that required doctors who perform abortions to have admission privileges at a nearby hospital. In that case, five justices, including Chief Justice John G. Roberts Jr., relied on a prior case (Casey) in ruling that the Louisiana law imposed an undue burden on the right to obtain a pre-viability abortion. The interpretation by the high court that the law created an “undue burden” would indicate a majority believes abortion really is a federal constitutional right. 

But wait. That version of the court still had Justice Ruth Bader Ginsburg. She has since been replaced by Amy Coney Barrett. The two could not be more ideologically different. Some court watchers say the latest appointment gives the high court a 6-3 conservative majority, thus all but assuring victory for pro-life and other right-wing cases. 

I would refer you back a mere three paragraphs, however, to remind you that Chief Justice Roberts is not a reliable conservative vote. He voted with the left wing of the court for Obamacare, for gay marriage and for abortion rights. He was appointed by a Republican, but his track record is one the left should embrace. 

That leaves a perilous 5-4 leaning court. A purist would say that is a good thing. Conservatives surely like the fact the five is in their favor, yet liberals still have a shot on any given issue. In the case of Dobbs, pro-life supporters have reason to be hopeful, but it is important to keep expectations realistic. Kevin Williamson of National Review captured it perfectly:

“Throwing out Roe would not mean banning abortion. It would not even necessarily mean restricting abortion. Roe is a bad legal decision not because of any moral question related to abortion but because it is bad law. The Constitution does not say anything about abortion one way or the other…”

“Post-Roe, the law would be made by the lawmakers. That would probably mean that Oklahoma and Utah will end up with abortion laws that are very different from those of California and New Jersey. As a constitutional matter, that is appropriate — it is, in fact, how things are supposed to be: We have 50 different states for a reason…” 

The fight would go to 50 different state legislatures. My worry is much greater than this single issue, however. A couple of months after being sworn in as president, Mr. Biden appointed a presidential commission to study the judiciary and come back with suggestions on how to improve it. The commission is headed up by behind-the-scenes Democratic operatives. If Dobbs overturns Roe v. Wade, the left would use the commission and the mainstream media to generate outrage and fuel the fire calling for the expansion of the Supreme Court under Mr. Biden. They would use this case to politicize the court and in the process, potentially undermine the stability of the United States. 

Never mind 200 years of political stability brought about by keeping the judicial branch decidedly apolitical. Never mind an NPR/PBS NewsHour/Marist 2019 poll that found that only 29% of Americans say abortion should be allowed after the first 13 weeks of pregnancy. Never mind anything other than a manufactured outrage that would ignite a fire that just may burn this great country to the ground.

I sincerely hope Roe v. Wade is overturned with the wisdom of this high court and the clear intent of the Constitution. I am genuinely concerned, however, that any such victory would be leveraged by the left in a destructive effort to grab and consolidate power, resulting in irreparable harm and quite possibly sowing the seeds for an end to this great country of ours.

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