Last week I spoke with a legislator who gave voice to what a number of legislators believe: The U.S. Supreme Court is not ready to reverse Roe v. Wade, so enacting any legislation—even that proposed by the governor—thinking it might lead to Roe’s reversal is mere fantasy. Then, on Monday, I got an email from a committed pro-life friend that was as despairing about the possibility of Roe being reversed as this legislator was. Perhaps this bit of truth will set them free.

The despair from the legislator comes from the incessant drumming of national legal organizations that the U.S. Supreme Court has sent no signals that it is ready to reverse Roe v. Wade and Casey v. Planned Parenthood. Moreover, according to information these experts have gleaned from past and current clerks to our U.S. Supreme Court justices, the Court will not reverse such long-standing precedents until there are six justices in favor of reversing.

I do not quibble with this analysis, even though it is based on certain assumptions that I do not share.¹ But the email from my friend did disturb me, and my heart did sink and even despair a bit based on what the article he’d forwarded had said.

The article noted that last year even Justice Clarence Thomas, the one justice who has overtly criticized Roe and Casey, joined with the other eight justices in refusing to hear an appeal from an 11th Circuit decision that had held unenforceable Alabama’s ban on dismemberment abortions.

His thought, and mine, was this: If even Clarence Thomas will not vote to hear an appeal and reverse, in Thomas’ words, “decisions requiring States to allow abortion via live dismemberment,” then what hope is there that Roe and Casey will be reversed?

Ironically, even in the face of this, Jim Bopp, counsel for National Right to Life, recommended to the state Senate’s Judiciary Committee last August that the legislature enact a dismemberment abortion ban. 

Why Did Clarence Thomas Not Support An Appeal?

Anyway, I did some research and found that Justice Thomas had written an opinion explaining why even he did not vote in favor of hearing an appeal from the 11th Circuit’s decision. Here’s what he wrote: “[T]his case does not present the opportunity to address our demonstrably erroneous ‘undue burden’ standard . . . .”

What does this mean?

To understand his statement, one has to look at the decision of the U.S. Court of Appeals for the 11th Circuit. Reading its decision, it is clear that the state of Alabama conceded that the applicable constitutional standard by which its law should be evaluated was Casey’s “undue burden” standard prior to fetal viability. Dismemberment bans can apply prior to fetal viability.

Justice Thomas was simply saying if the state is going to agree that Roe and Casey provide the appropriate legal standard and only argue that the state’s law did not violate that standard, then the Court is not going to be in a publicly credible position to address the merits of that standard. In other words, it would undermine the Court’s public credibility to reverse Casey when it wasn’t even asked to do so!

In plain English, Justice Thomas was telling pro-life politicians and state attorney generals to stop giving the Court cases that assume Roe and Casey are good, valid precedents. He was telling them that the Court is not going to reverse a precedent that the state doesn’t even bother to say is wrong.

The Cause of My Despair

So, do I despair of the Court not reversing Roe and Casey until there might be a sixth justice on the Court willing to say those decisions are wrong? No.

I despair of politicians and lawyers for the state who are unwilling to give the Court a case in which it can even revisit those precedents.

Perhaps our pro-life politicians haven’t passed a law that led to the reversal of Roe and Casey because they didn’t ask. And perhaps they didn’t ask because they don’t understand the wrong assumptions behind the despairing picture that gets painted for them by lawyers who prefer trying to count votes on the Court—judicial politics—to arguing for the rule of law.

NOTES

1. The assumption is that there is no legislation that can be drafted and enacted other than that which directly says to the Court, “Admit that your 14th Amendment 'liberty' jurisprudence was wrong." Abortion, according to Casey, is about a woman’s liberty and, according to everyone, Tennessee would have to convince the Court that its interpretation of “liberty” was wrong. That is a steep hill to climb, which is why the organization I lead proposed legislation that sought to define the word “life,” used in both the Fifth and 14th Amendments’ Due Process Clause, and put the word “life,” as understood at the common law, in conflict with the Court’s made-up interpretation of “liberty” that goes far beyond the common law understanding of that word. Make the Court address a new issue, not just the word “liberty.” Now, the Supreme Court is confronted with a new issue and could save face a bit in reversing Roe and Casey by saying this new legal constitutional- and legal-based argument in regard to life (instead of just a biological view of life) is in conflict with its old abortion jurisprudence that was focused only on the liberty of the woman.

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David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.