In 1973, the United States Supreme Court issued its worst decision of all time: Roe v. Wade.
In a decision made not by the people’s representatives but by seven unelected lawyers, the Supreme Court reasoned that the Fourteenth Amendment allows a pregnant woman to kill her unborn child, even though such a rule can be found neither in the text of the Constitution nor the history of our people. This truly egregious decision was the grossest perversion of our Constitution in the Supreme Court’s history, and over 60 million babies have been murdered because of it.
But now, for the first time since the Supreme Court affirmed Roe’s core holding in Planned Parenthood v. Casey, it appears that we finally have the votes to overrule Roe once and for all.
Today, the State of Mississippi will be asking the Supreme Court to do just that.
As I explained in a recent law review article, I believe that we currently have six justices — Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett — who would be willing to overrule Roe. This isn’t like the 90’s where we were hoping that some of the Reagan and Bush appointees would turn out conservative, but our hope was based on a gut feeling. On the contrary, the six conservative-leaning justices currently on the Supreme Court have enough of a record such that if they take their principles to their logical conclusions, then Roe can and must fall.
To explain this, let me briefly discuss why I think we have six votes.
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The most solid votes on the Court are undoubtedly Justices Thomas and Alito. Justice Thomas has compared Roe with the infamous Dred Scott decision and called for it to be overruled. While Justice Alito has not been as explicit in attacking Roe, he has been an iron-clad conservative vote on issues like these over his entire tenure.
Neil Gorsuch, who replaced Justice Scalia, is also very conservative. The lone exception to his conservative record is his opinion in Bostock v. Clayton County, which was a truly terrible decision that read LBGT ideology into federal civil rights law. However, Gorsuch won’t vote in this case like he did in Bostock because he sees a big difference between how one interprets a statute and how one interprets the Constitution. In cases of constitutional interpretation, Gorsuch looks not only to the text of the law (which he purported to do in Bostock) but the original public meaning. Under that reasoning, there is no way that Roe can stand.
President Trump’s second and third appointments to the Supreme Court, Brett Kavanaugh and Amy Coney Barrett, have not been as bold attacking hot-button issues as Thomas and the others. However, both of them believe that when they are forced to choose between precedent and the Constitution’s actual meaning, they give more weight to the latter. Thus, they will vote to overrule Roe.
Finally, Chief Justice Roberts, who has disappointed conservatives many times, will vote to throw Roe out as well. He can compromise when the Court is criticized as political. But when it comes to this issue, Roberts believes that Roe itself was a political power grab, and therefore protecting the Court’s image means reversing Roe.
So with that in mind, I am optimistic about our chances of overruling Roe.
But there is one thing we need to be doing between now and June, when the decision will likely come out: pray.
The Court usually saves its more controversial opinions for June. At the end of the oral argument today, the justices will go back into a private conference room and take a preliminary vote. My guess is that we’ll have a 6-3 decision to throw Roe out.
But a lot can happen between now and June. When Chief Justice Roberts joined the liberals to uphold Obamacare in 2012, it has been reported that he initially voted with the conservatives but then changed his mind at the last minute. Likewise, when the Court was asked to overrule Roe in 1992 in Planned Parenthood v. Casey, it appeared that Justice Kennedy changed his vote between oral argument and when the opinion came out.
In football, if you want to stop a kicker from making an easy field goal, you burn your timeouts before he kicks in order to give him too much time to think about it. In the same way, if you want to stop a weaker conservative justice from voting the right way, give him six months to think about it.
Therefore, if you desire to see the end of Roe, please be faithful to pray for the justices between now and June. Let us not forget that in addition to being a legal battle, this is also a spiritual battle. Satan wants to keep Roe intact, and he will be putting those six justices at the top of hell’s hit list.
The justices need immovable fortitude that will hold up over the next six months to get Roe thrown out. Let’s be faithful to pray for them so that, in June, we celebrate the fact that Roe’s reign of terror is no more.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com
