In "Roe v. Wade Is Already Dead," Josh Hammer posits that states can and have already acted to outlaw abortion even before the leaked Dobbs opinion. Thus, they do not require the Supreme Court's conclusion. He supports this claim by discussing Texas' and Oklahoma's recent pro-life legislation. Finally, he claims that overturning Roe is the only thing that can possibly preserve the Supreme Court's integrity. We have included a few excerpts below for your perusal.

"…[W]hat hasn’t been pointed out in the frenzy over the leaked Dobbs draft opinion is that Roe is, practically speaking, already dead — regardless of what the Court decides to do in Dobbs. The states already have the ability and authority to restrict abortion in any manner they see fit. Accordingly, they do not need to wait for the Court to overrule Roe to severely limit or simply outlaw abortion within state borders."

"Oklahoma was able to pull this off by copying the ingenious enforcement mechanism from the Texas Heartbeat Act, which prohibits state officials from enforcing its restrictions while authorizing private citizens to sue anyone who performs or “aids or abets” an abortion. By structuring its law in this manner, Oklahoma has made it impossible for abortion providers to challenge the statute’s constitutionality in federal court: There are no state officials providers can sue for enforcing the law."

"All of this makes the anticipated ruling in Dobbs at least somewhat anticlimactic — it will not be the formal overruling of Roe that returns the issue of abortion to the states. That moment has already arrived, as Texas and Oklahoma have cracked the code and demonstrated how to enact an abortion ban that evades judicial review and neuters Roe."

"It is now untenable, perhaps farcical, to suggest that the Court should adhere to Roe out of concerns for the Court’s institutional stature. Many in the media have become fond of saying that the Court’s credibility will be harmed if it overrules Roe. But at this point, the Court’s credibility will be far more damaged if it continues to insist that abortion is a constitutional right when any state can cleverly legislate its way around Roe’s very supposed holding."

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