Life and law being messy, there is rarely a crucial experiment available to test competing views. But in the recent controversy over the conservative legal movement’s strategy with respect to abortion, we have a test that is as good as we are likely to get: the pending certiorari petition in Dobbs v. Jackson Women’s Health Organization, in which the lower courts struck down Mississippi’s ban on abortions after 15 weeks (with various exceptions). The cert petition squarely asks, in its first question presented, “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.” It is a head-on challenge to the Roe v. Wade framework.
A voice of the originalist establishment has said that “it is unlikely that there will ever be a more opportune vehicle” to reconsider Roe, and this is exactly right; Dobbs presents a choice opportunity. Four votes are needed to grant cert. There are now six GOP-appointed Justices on the Court, including three Trump appointees (Justices Gorsuch, Kavanaugh and Barrett, in order of appointment) who were openly screened by the Federalist Society. If four votes cannot be found among these six even to consider a square challenge to Roe, it seems well past time to take stock of the conservative legal movement’s approach to abortion, and well past time for some accountability — ideally self-imposed accountability — on the part of the movement’s leaders. Of course, even a grant, although welcome, will hardly guarantee success on the merits. But if a supermajority of GOP-appointed Justices are unwilling even to consider the issue, something has gone very wrong.