The James Wilson Foundation on Natural Rights and the American Founding

“An Opportunity to Overturn Roe” – Gerry Bradley in First Things

In an essay for First Things, JWI Senior Scholar and Trustee Gerry Bradley explores the future of Roe v. Wade and the implications of Justice Amy Coney Barrett’s appointment to the Supreme Court for the pro-life movement. Recently, the Court refused to take action on the case of Dobbs v. Jackson Women’s Health, in which a Mississippi law that banned abortion after fifteen weeks was struck down by the Fifth Circuit Court of Appeals. Consequently, although it has been argued that there is now a “pro-life majority” on the Supreme Court, Bradley concludes that the Court still shows no signs of overturning Roe. However, he affirms that there is still a legal way forward for the pro-life movement, and outlines a new strategy.

Some excerpts from the piece:

“If a ‘pro-life’ justice is one who is fed up with Roe v. Wade and wishes it would go away, then there are indeed six of them. How many justices are prepared to overrule Roe v. Wade is a different question. The Court’s inaction this term on an abortion case from Mississippi strongly suggests that fewer than four justices are prepared to overrule Roe.”

“We are nearing a half-century of pushback to Roe. The vast bulk of the legal effort has been strategically indirect; that is, focused on issues such as informed consent, clinic regulations, and other matters affecting pregnant women’s health and well-being. This whole legal effort has been a rallying point for sustaining a pro-life culture without which we would not have, among other things, a ‘pro-life’ majority on the Supreme Court. But these efforts have just about run their course.” 

“It is safe to conclude that, contrary to the hopes of many and the fears of others, there is presently no majority on the Court prepared to overturn Roe. Where does that leave the pro-life movement, especially its legal strategy? Conscientious state lawmakers should continue to enact pre-viability bans, as Mississippi did in Dobbs. That is the only potentially fruitful way forward on the legal front.”

Read the full article here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790