The James Wilson Foundation on Natural Rights and the American Founding

Revisiting ‘Roe’: Prof. Gerry Bradley in the National Catholic Register

In an article titled “Revisiting ‘Roe’: Why the Supreme Court Decision on Mississippi Case Will Likely Ditch Viability” for the National Catholic Register, JWI Senior Scholar and Trustee Gerry Bradley predicts the approach of certain Justices of the Supreme Court thought to be pro-life after the announcement of that the Court would hear Dobbs v. Jackson Women’s Health Organization. Prof. Bradley outlines a potential strategy for hearing the case, and suggests what the Justices might hold regarding viability, the central issue of the case. Mississippi lawmakers’ central argument has followed an argument similar to Justice Sandra O’Connor in Akron, a case from early in her term on the Court. However, those lawmakers depart from her language regarding the protection of “potential life.” If the Court decides to overturn Roe, Prof. Bradley says, it is because they recognize that the fetus is not a potential life, but an actual life worthy of protection.

Some excerpts from the piece:

“Even if only four (of the six) wanted to hear the case, those four would not vote to do so unless they figured on a fifth vote to uphold the Mississippi law.  Their thinking would be this: it is better to say nothing and let the lower court rulings stand without comment, than to risk having the Supreme Court add one more anti-life precedent to an already ghastly body of law.  Thus, they choose this case expecting to muster a majority to breach the ‘viability’ wall.”

“Mississippi is already pressing this truth.  And the second, the one O’Connor suppressed. Although its petition quoted O’Connor’s words faithfully, the state erased the concept of “potential” life from its own rendition.  Mississippi consistently maintained that a real (not “potential”) human individual comes into being at conception and is present throughout pregnancy.  This plain fact is strategically woven into its argument about the state’s asserted ‘interest, from the outset of pregnancy in protecting the life of the fetus that may become a child.”  Of course, that a fetus “may become a child’ does not imply or entail that the fetus is not already a human person, albeit at an early stage of development.”

“The only way for the Supreme Court to block this catastrophic reaction would be for it in Dobbs, or in a subsequent case brought against Biden’s ‘codification’ of Roe, to draw the obvious implication of the two truths we have been discussing:  if the same living human being who comes to be at conception is the same being who is born nine months later, than the person whom we welcome at birth began at conception.  Then the unborn child’s right-to-life would be constitutionally guaranteed by the Fourteenth Amendment from the moment of conception, and Biden’s ‘codification’ would be unconstitutional.”

View the full article in the National Catholic Register 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