In an essay for First Things, JWI Senior Scholar and Trustee Gerry Bradley explores the implications of the Supreme Court's decision to hear Dobbs v. Jackson Women’s Health Organization for the pro-life movement. In the case, the Fifth Circuit Court of Appeals followed the fetal viability test established in Roe v. Wade to strike down a Mississippi law that banned abortion after fifteen weeks. Bradley analyzes the jurisprudence of Roe, Planned Parenthood v. Casey, and Dobbs, to determine what the Supreme Court's pro-life justices will decide when the case is brought before them. He concludes that the judges will likely discard the viability test, and that they will struggle to do so without overruling Roe altogether.

Some excerpts from the piece:

"In Dobbs, the Fifth Circuit Court of Appeals struck down a Mississippi law that prohibited abortion, with few exceptions, after fifteen weeks' gestation. On June 15, 2020, Mississippi filed for review by the Supreme Court. All that we know right now about the justices’ intentions is contained in the Supreme Court’s one-sentence order: 'The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.' The 'petition' was Mississippi’s. 'Question 1' is this: 'Whether all previability prohibitions on elective abortion are unconstitutional.' The law currently holds that 'viability' occurs about twenty-two weeks into pregnancy."

"The main arguments offered by Mississippi against 'viability'—that it ties the law to variable medical technology and that it has no relation to the state’s interest in protecting fetuses—work as well against a fifteen-week 'viability' line as they do against one set at twenty-two weeks. For that matter, they work pretty well against any principled stopping point between conception and birth."

"The pro-life justices will be unsatisfied with throwing up any facile or arbitrary line in pursuit of a moderate result that somehow divides elective abortions into coherent categories of those which are constitutionally immune to state bans and those which are not, distinguished by some relevant principle and not by judicial fiat. Perhaps that opinion simply cannot be written. We should pray for that event, for it would augur, as Mississippi suggested, that 'Roe and Casey should indeed be overruled.'"

Read the full article here.