The Supreme Court has “granted cert” in Dobbs v. Jackson Women’s Health, regarding a Mississippi ban on most second- and third-trimester abortions. (“Granting cert” means it will hear the case.)

It is generally agreed that the Mississippi ban is incompatible with current Supreme Court abortion precedents (which are themselves, it must be said, incompatible with both the Constitution of the United States and the “higher law” to which Sen. William Seward, R-NY once referred). The Mississippi law was struck down unanimously by a lower court panel, and there is no split among the lower-court circuits.

However, in the lower-court decision, a concurrence by Judge James Ho essentially said, “I am required to strike this law down because of Planned Parenthood v. Casey, which is a garbage, barbaric, eugenic precedent… but it’s binding,” then got down on his knees and begged the Supreme Court to overturn Casey. This is not the first time in recent months that a federal appeals court judge has acted consistent with Casey and begged the Supreme Court to overturn Casey.

This is uncommon, but happens often enough on a range of issues, and sometimes the Supreme Court hears the pleas from the lower courts. For example, in Mozilla v. FCC (2019), left-wing Judges Millett and Wilkins upheld an FCC repeal of net neutrality rules under the NCTA v. Brand X precedent, but then each filed separate concurring opinions asking the Supreme Court to please please please reconsider the central holding of Brand X. (In the end, the Supremes never got the chance, because Mozilla chose not to appeal.)

Anyway. The Supreme Court will hear Dobbs v Jackson Women’s Health this fall. Mississippi presented three questions for appeal in its petition:

First, are all pre-viability abortion bans unconstitutional? (That is, is it constitutional to ban abortion before the 28th or 22nd week of pregnancy or so?)

Second, what legal standard should be used to analyze pre-viability abortion regulations — the Casey standard or the Hellerstedt standard? (If you don’t know what that means, don’t bother finding out right now.)

Third, do abortion providers have standing to sue against abortion regulations, or do only mothers actually affected by the regulations have that standing?

The Supreme Court agreed to consider ONLY THE FIRST QUESTION. Questions two and three were denied.

So the ONLY question the Supremes will consider this fall is whether pre-viability abortion bans are constitutional. That means there’s no possibility that the Court granted this case merely to decide some technical issue about standing, nor to clarify its holding in Hellerstedt. They have even, in some ways, denied themselves that possible escape hatch. They are directly asking whether states can, consistent with the Constitution, ban at least some pre-viability abortions — a question current Supreme Court precedents and lower courts have already answered with a resounding (unconscionable) “no”.

There is no reason for the Court to raise this already-answered question unless it were considering changing the answer. Indeed, the reason the Mississippi law was passed in the first place was to get the Supreme Court to reconsider its abortion precedent. This is obviously very good news for pro-lifers.

But not unalloyed good news.

The strange thing about this case is not that the Court will hear it, but that it took so long to decide to hear it, and that it decided to hear it now. Dobbs has been on the docket for months.

In a similar high-profile case about the Second Amendment, New York Rifle v. Corlett, the appeal was made in January, the Court discussed the case for the first time in March, and granted cert in late April, after discussing it three times.

In Dobbs, the appeal was made last June, almost a year ago. The Court put off discussing it throughout their entire fall term, a really unusual decision which ensured that, even if granted, the case could not be heard until Fall 2021 and thus not decided until June 2022. They finally started discussing it in January 2021… then discussed it thirteen times. This was an ominous sign to court-watchers. It’s good for a cases’s odds if it gets get relisted once or twice. But to get relisted thirteen times? That’s a case the Court is stalling on — a case the Court is probably going to quietly deny at the end of June, as it did last year in several major Second Amendment cases.

Another, more optimistic possibility I had considered was that the Court was planning to grant cert in Dobbs, but was hoping to announce it the same day as some other major headline-grabbing opinion. This would help ensure that the headline from the in-the-tank pro-abortion press wouldn’t be “JOHN ROBERTS PLANNING TO PERSONALLY MURDER A WOMAN” — or whatever CNN probably says right now.

Instead, surprisingly, the Court granted cert all of a sudden, and not at all on a big opinion day. What gives? Why now? Answer: I don’t know! But here are some wild guesses, which I’ll call Scenarios to make them sound weightier:

SCENARIO A: Dobbs is just a controversial case and the Supremes wanted to be sure they’d dotted all their i’s and crossed all the t’s before granting cert. It’s super-weird for a case to be relisted QUITE as often as Dobbs and then suddenly granted… but the Supremes DO sometimes relist a case a bunch, talk it out, and then grant. We have no idea what goes on in that conference room.

SCENARIO B: The Supremes were always going to grant cert to Dobbs, but they were debating which of the three questions to consider. Only granting the first question is a fairly big deal.

SCENARIO C: Knowing that the Court’s Left would do almost anything to protect America’s far-to-the-left-of-Europe abortion regime, Roberts and maybe Kavanaugh were trying to horse-trade with the liberal justices for, I dunno, something or other. Roberts is an operator like that. Eventually, the horse-trade fell apart — maybe because Sotomayor has more integrity than Roberts, maybe because Roberts couldn’t deliver — so Roberts allowed the grant in Dobbs.

SCENARIO D: Technically, four justices can grant a case. But this rarely happens, because it takes FIVE justices to WIN a case. Justices generally don’t generally tee up big cases only to lose them, big, at the highest court in the land.

But imagine a scenario: John Roberts and Brett Kavanaugh, who together form the court’s center, are both refusing to hear Dobbs. “It’s a direct attack on Casey,” they say, “We should go slower, build up a record of cases undermining Casey before we overturn it. It will be a huge blow to the Court’s political prestige to directly overturn Roe and Casey, even if we’re right, and the Court’s prestige is the most important thing.”

The four-justice conservative bloc (Alito/Gorsuch/Thomas/Barrett) responds, “You know Casey is bad law as well as we do. Mississippi’s law is constitutional and they have a right to enforce it. So we have no right to turn aside this case. You wouldn’t dare uphold this garbage precedent; your respect for the law is too great, and, besides, a justice who votes to uphold Roe is essentially expelled from conservative society forever.”

Roberts and Kavanaugh: “If you force our hand, we will vote to uphold Casey and Roe.”

Conservatives: “You’re bluffing. Surely even you, Chief Justice Roberts, for all your politicking, don’t hold the Constitution of the United States or your judicial oath in such deep contempt.”

After going around and around on this thirteen times, the conservatives call their bluff and roll the dice. They grant cert even though Roberts and Kav are still officially holdouts. There are four votes on the Court to overturn Casey, three votes to uphold it, and two whose legal commitments are all against Casey but whose political commitments run the other way — in which case Dobbs may lose.

I think this scenario is pretty plausible, because it seems that something close to this played out several times in 2018-2020… except the conservatives didn’t have four votes to grant cert because Barrett wasn’t on the Court yet, so we ended up with Gorsuch/Alito/Thomas filing several joint dissents from denial of cert.

SCENARIO E: Kavanaugh was in favor of granting Dobbs, but Roberts wasn’t. Kavanaugh, who adores Roberts, has spent the past several months negotiating with Roberts, perhaps trying to open up a path to a narrow decision that upholds the Mississippi law but doesn’t blow up Roe and Casey. When it became clear that Roberts wouldn’t play ball–perhaps in part because Gorsuch kept haranguing him in conference for playing politics, and Roberts more or less openly hates Gorsuch (and vice versa)–Kavanaugh reluctantly voted to grant cert without Roberts’ support.

SCENARIO F: The four conservatives decided they would not grant cert unless they could secure a fifth vote. Roberts and Kavanaugh were holding out because they didn’t like the optics of Dobbs, and they were both planning to kill this case quietly in June. However, Kavanaugh read the unflattering profile of himself in The Atlantic last week. He realized that, if he killed Dobbs, mere weeks after that article ran, it would cement his image on the Right as an unprincipled opportunist. So he opportunistically changed his vote to avoid the perception of opportunism.

SCENARIO G: Odds are pretty good that all these scenarios are wrong, and the mysterious relist saga in Dobbs happened for some other reason. The Supreme Court is deliberately opaque! That’s probably good in some ways, frustrating in others.

So what’s it all mean? The most likely outcome of this case is a substantial narrowing of the supposed right to abortion (which was improperly constitutionalized in 1973). This would give states significantly more freedom to set their own abortion policies, whether permissive or restrictive, and it may very well practically eviscerate Casey. A very possible outcome is that the Court will directly overturn Planned Parenthood v. Casey — and, thus, indirectly overturn Roe v. Wade.

But it is also quite possible that pro-lifers are going to be disappointed. After all, that’s our lot in life: we never win decisive Supreme Court abortion cases, and rarely win any Supreme Court abortion cases at all, because the Supreme Court considers abortion cases in a parallel pocket dimension where literally nothing about the law or prior precedent matters–only preserving the Court’s abortion mandate does. Look how terribly Hellerstadt v. Whole Women’s Health turned out for us, despite all the signs pointing the right directions. And then, to add insult to injury, we lost June Medical Services, too! Look what a disaster Planned Parenthood v. Casey was, when it was the decision that was supposed to repudiate Roe. Even our biggest wins, like Gonzales v. Carhart, were very, very narrow, and largely just triumphed over even worse decisions, like Stenberg v. Carhart.

The stakes are higher this time. If the abortionists win this case, despite having six thoroughly-vetted, Federalist Society judges forming the Supreme Court majority, then that is a full and final repudiation of pro-life legal strategy for the past thirty years. Not only would that be very bad news for babies… it would also be very good news for Adrian Vermueule’s “Common-Good Constitutionalism” project, which repudiates textualism in a way I find repellant and which progressives should find utterly terrifying. On the other hand, if the abortionists lose, especially in a big way, that’s a pretty big vindication of the legal strategy. And there’s good reasons for hope — but also good reasons to fear.

We still do not know how Kavanaugh and Roberts will vote in this case. (Technically, we don’t know about Alito, Gorsuch, or Barrett, either… but I think their jurisprudence is clear enough to draw a conclusion.) We have strong reason to believe that at least Roberts and very possibly Kavanaugh have been working hard to avoid this case for months. We don’t know why Dobbs was held over for so many months. There is reason for optimism. There is reason to start preparing for a 50-state abortion battle starting in June 2022, and reason to make sure red-state social safety nets are up to the challenge of helping a lot more babies being born to poor women, especially women of color. There is also reason to start preparing for a negative outcome, and — with it — the failure and collapse of the conservative-textualist legal movement.

EDIT: P.S. It is interesting to note, although I can’t find any special meaning in it, that the Court granted cert in Dobbs on the same day that it finally decided to dismiss American Medical Association v. Azar — a case it had held over for quite a long time, in a very unusual move. (I apologize for a Vox link, but Ian Milhiser’s explanation of the strange course of AMA v. Azar is clearer than any I’m familiar with.) Maaaaaaybe Dobbs and AMA were held over until now because of some kind of debate about which one the Court should take? Seems unlikely, but, then, AMA being held over in the first place seemed unlikely until it happened.

I replied, without rancor:

This is like saying that Roger Taney wasn’t anti-Black.

In fact, it’s exactly like that.

Now, I get it: you don’t think unborn people are people, and think it’s not just reasonable but necessary (for gender equality) to exclude them from legal personhood, the protections of the Constitution, and the 14th Amendment. Okay, that’s where you stand. We all know how abortion debates crash and burn in this thread, and we don’t need to have one tonight.

But declaring that you think the unborn have “no rights the [born] man is bound to respect” makes you — and the mainstream Democratic Party — anti-unborn. This is as plain as the fact that triangles have three sides. Please don’t pee on my leg and tell me it’s raining.

(Roger Taney was the Supreme Court justice who authored Dred Scott v. Sandford.)

My acquaintance was infuriated. He demanded I apologize for my “insulting, disgusting” comparison to “a slave-owning SCOTUS justice” and contended that I had attacked the basic rules of civil discourse by drawing that parallel. He stated that there was no similarity between abortion and slavery, because of course everyone has always known that Blacks are full-fledged human persons, but nobody knows or ever can know whether unborn children are full-fledged human persons, in large part due to their limited cognitive abilities.

I answered (intemperately, this time) that if he was uncomfortable being compared to Taney and the slaveholders, he should stop relying on the same logic, the same arguments, and even the same legal theory as the slaveholders. I said that, like the George Floyd protestors (who were on the streets at the time), and like the great William Lloyd Garrison, I had lost patience with being called uncivil just because I said plainly that our society should stop murdering kids. I noted that, in fact, White Europeans like us had spent centuries pretending not to know that Blacks are full-fledged human persons. You saw it from the theological debates of the 15th century over whether indigenous people had properly human souls, to the scientific racism of the 20th century, which claimed Blacks lacked Whites’ cognitive abilities.

At this point, my friendly acquaintance ended our conversation, unfriended me on social media, and never spoke to me again.

This is not the first time I’ve had a conversation go like this.

I think the last time it was when an abortion rights advocate insisted that parents should be able to abort if there’s evidence that the child has a serious defect, like Down’s Syndrome. I responded with a comparison to lebensunwertes leben (“life unworthy of life,” the 1930s progressive ethic used by the Nazis to justify euthanization of the disabled).

The time before that, it was when I noted that Roe v. Wade‘s death toll eclipses that of the Holocaust, and that those who support Roe have some of that blood on their hands. (62 million American children have been killed under the Roe regime. 12 million died in the Holocaust, including 6 million Jews.)

In each case, once I drew the comparison, the conversation was derailed and the relationship seriously damaged.

Now, you are free to criticize my approach for being imprudent. I, too, wonder whether I could have caught more proverbial flies with more honeyed tactics.

What you can’t really dispute, though, is the logical basis for my comparisons. If unborn-rights advocates are right about our core claim, that fetuses are people, then it’s impossible to see the abortion-driven eradication of people with Down’s Syndrome as much different from Aktion T4. It becomes impossible to see your local Planned Parenthood as substantially different from a death camp. It becomes impossible not to recognize the thread of logic that runs from Dred Scott and Plessy v. Ferguson through Roe and Whole Women’s Health v. Hellerstedt.

Inherent in the unborn-rights position is the conclusion that we, as a nation, are guilty of one of the greatest crimes in human history.

Yet, when I say this very obvious thing out loud, my interlocutors always seem completely stunned that I would think such a thing. Even if they started out believing that they wanted an open, honest, constructive dialog with a pro-lifer, they are so outraged that I actually, seriously, for real think fetuses are people (and that people who kill fetuses are actual, serious, for real murderers) that many of them end our relationship on the spot.

And I’m, like, dude, you knew I was pro-life! How did you think I saw the willful murder of 62 million innocent children? How did you think I saw your complicity in it?

Yet I think their shock is real. Most pro-choicers really can’t believe you think they support atrocities… and they really can’t imagine carrying on a friendly relationship with you afterward. Who could possibly be friends with a Nazi or a slaveowner or even a run-of-the-mill modern racist? And didn’t I just tell my friends that they are Nazi-grade monsters? Who could possibly be friends with someone who sees them as a monster?

And here, finally, is the point I’ve been meandering toward: I suspect there’s a real difference in how abortion abolitionists and abortion defenders generally view the world. We don’t just differ on the question of whether and how to protect fetuses and their mothers. Our understanding of abortion informs our whole approach to good and evil.

For those who oppose unborn rights, I have to imagine that the story our culture tells itself about evil seems more or less true:

Most people are basically decent folk who just want to prosper and raise their families in peace. But a few people are monsters. Your basic Adolf Hitlers or Simon Legrees don’t just make bad choices; they are utterly depraved. Everything about them serves evil. Even when they do a good thing, it’s mere hypocrisy, which actually underlines their depravity. Is there anything more infuriating than a slaveholder taking the slaves he tyrannizes six days a week to Christian church services on the seventh?

These rare monsters, the story goes, have a knack for finding other monsters and giving them power, whether big fish like Joseph Goebbels and Sen. John C. Calhoun, or mere thugs like Karl Frenzel and Isaac Franklin. Worse, these monsters are sometimes able to convince superstitious, less-educated decent folk to follow them, often by exploiting their poverty and ignorant prejudices. These decent folk can be saved through education, welfare, and outreach. The monsters may perhaps be mentally ill, in which case they can be treated. However, many of the monsters can only be ostracized and destroyed, so that the decent folk who make up the overwhelming majority can live in peace. Think of how our society regards Ku Klux Klansmen and neo-Nazis — the modern ones, who don’t have the excuse of living in a time when that sort of thing was more acceptable.

Fortunately, in our enlightened times, we have much better education, mental health care, material wealth, and empathy than our forebears. Evil may still occasionally erupt into our lives—Donald Trump and his supporters are often treated like an inexplicable, unanswerable darkness of this sort—but modern civilization has made it difficult for real, Nazi-level, slavery-level evil to gain a foothold… and, if it does, we may rely on the legions of Educated Decent Folk to beat it back into the hole it came from. Then the world returns to decency. We’re certainly not perfect, but we’re trying, and, for the most part, we muddle through to doing the right thing.

This is not the world a pro-lifer grows up in.

When I was growing up, the heart of my neighborhood was on Ford Parkway. When I was around ten years old, if you’d asked me to list the major landmarks on Ford, I would have said something like, “Well, there’s the Blockbuster, the bookstore, the hobby store that has Star Trek cards, the old 31 Flavors, the library, the place where they kill babies, and the Pizza Hut they’re turning into a Dairy Queen.”

I never had nightmares about abortion clinics or anything, they were just a daily fact of existence, a constant reminder that evil wasn’t some distant eruption of darkness. Evil lived in my neighborhood. It had an address and a business permit. When I once naively suggested that police would help Operation Rescue protestors shut down the clinic, it was explained to me that, in fact, the police would be arresting and dispersing the protesters.

I slowly became aware that the President of the United States, Bill Clinton, not only supported the killing, but refused to put a stop to even the most brutal forms of infanticide. And, even as a kid, I knew you didn’t become President without votes — a lot of votes.

It eventually emerged that some of those voters were loved ones within my own family, people I’d known and adored my whole life. Some of the people who considered abortion rights crucial to human rights were the parents of my best friends.

These were people I knew to be Decent Folk, genuinely. They were not totally depraved Simon Legree types, doing the occasional good thing merely to underline their own hypocrisy. Nor were they ignorant rubes dragged along by Justice John Paul Stevens’ soaring rhetoric and immense charisma. (/s) These were educated people, many of them churchgoing. They loved their families, gave to the poor, supported racial equality, worried about the well-being of all mankind, and occasionally even let me and my friends play extra time on the computer near the end of the day. (Which practically made them saints!) I loved them, and I still do.

Many, no doubt, were uncomfortable with the idea of abortion and tried not to think about it. Or perhaps they tried to absolve themselves by insisting that they didn’t support abortion, just the choice to have one. And yet, here they were, part of the machinery of death, doing their small part to help churn out the tens of millions of crushed infant skulls upon which our “civilization,” if you want to call it that, is built. Thirty-five hundred skulls a day, every day—more than 9/11, more than a really bad day of covid-19—every single day, for almost five decades and counting.

Evil is not an abstract darkness erupting in the form of some freakishly clever psychopath. Evil runs through everything. It surrounds us, penetrates us, and binds us all together. Its ubiquity makes it banal beyond the dreams of Hannah Arendt. Take a trip to the library, and evil looms over you out the window while you read your kid Peppa Pig. Hang out with a buddy from the softball team, let the conversation veer toward “social issues,” and you discover evil sits right behind you in the batting order—and you’ve got a dinner party with him and his wife and kids next week that you’re really quite looking forward to. By the time you’re my age, you can be statistically quite certain that you have friends, perhaps even family, who have personally solicited, paid for, or committed murder… even if you don’t know which ones.

So that’s the world I grew up in.

I suspect I felt this at an unusually young age, but, if you believe that fetuses are people, it’s inevitable. This is the reality we all eventually have to come to grips with.

I suspect there are even people out there who would support abortion abolition, but can’t, because the reality of abortion is simply too awful to contemplate. As Dr. Gines Gonzales Garcia, a leader of the (largely male) Argentinian movement to legalize abortion, said last month:

Here there are not two lives as some say. There’s clearly a single person and the other is a phenomenon. If it were not like that, we would be facing the greatest universal genocide, [because] more than half the civilized world allows it.

But why should that be surprising? Read The German War, 1939-1945. Read the letters of average Southerners living in the Confederate States of America. We all seem to think we’ll be the first to leap to our feet and fight back heroically when atrocity comes our way, but every atrocity in every society in history teaches us the same lesson: rationalization is simple, and Murder Is Easy.

We can’t answer this evil by ostracizing it. We’d have to ostracize the whole world.

We can’t fight this monstrosity by hating the people who participate in it. They’re our friends, families, colleagues, and teachers. We know they are Decent Folk, many of whom we’d trust with our lives… and that they are willing supporters of a crime against humanity.

We know the United States is a great country, built on high ideals, and we’re proud to sing her anthems… and we realize that the U.S.A. can’t seem to stop committing atrocities, skipping almost instantly from slavery to Jim Crow to abortion (which disproportionately targets Black children).

If we have an ounce of wisdom, we recognize that we pro-lifers aren’t all that different. Many of us would have ended up pro-choice, at best, if things in our lives had played out just slightly differently. The evil that’s swallowed the world flows through our veins, too.

If we have two ounces of wisdom, we come to realize that our only hope against such pervasive evil isn’t ostracism, but love.

So if I ever compare you to a Nazi camp guard or a slaveowning Supreme Court justice, consider the possibility that I am not calling you an irredeemable monster who must be instantly cast out of polite society. Consider instead the possibility that I’m saying that the Nazi camp guard was probably a decent person who loved his family, had great empathy for all humanity, and sincerely tried to better his community—not a monster, but someone a lot like you. And a lot like me.

If only these good, decent, neighborly men and women had extended that empathy to one more small, inconvenient class of human beings. The ones they decided weren’t really “people.”

The ones they rationalized away.

The ones who died—the ones they slaughtered—by the thousands. By the millions.

Today is January 22nd. It is the forty-eighth anniversary of Roe v. Wade and the total legalization of abortion in the United States. 62 million people have died, and thousands more will die tomorrow. Once you understand how many good, decent people play a necessary role in making this happen, you can never see the world the same again.

This blog will simply attempt to describe the range of plausible outcomes in June Medical Services v. Russo (known until quite recently as June Medical Services v. Gee). After tomorrow’s oral arguments, we will have a much clearer idea of where the Court is heading. The pro-choice mainstream media will scream in horror at the top of its lungs under all plausible outcomes. The headline “The End of Roe is Nigh” will appear regardless of whether the end of Roe is, in fact, nigh. I want to post a few insights about the case now to help you set expectations and put the media’s forthcoming tantrum in perspective.

June v. Gee revolves around a series of medical regulations the state of Louisiana has imposed on abortion clinics. (Interestingly, the regulations were imposed in large part by Louisiana’s strong contingent of pro-life Democrats, God bless ’em.) These regulations are in many ways similar to regulations imposed by Texas several years ago. The Supreme Court struck down the Texas regulations in the 2016 case Whole Women’s Health v. Hellerstedt.

Hellerstedt was a 5-3 decision, with Justice Scalia absent (due to being dead). Leftist justices voted to strike down the regulations; right-wing justices voted to uphold them. Justice Kennedy cast the deciding vote and sided with the left-wingers.

But Scalia and Kennedy have both been replaced with conservative justices. Meanwhile, the 5th Circuit Court of Appeals has ruled that the Louisiana regulations are actually not that close to the Texas regulations and shouldn’t be affected by Hellerstedt.

What will the new Supreme Court do? Will they accept Hellerstedt as settled precedent? If they do, will they hold the new regulations should also be struck down, or are they different enough to be upheld? Will they finally act to minimize (or eliminate) the demented precedents of Roe v. Wade and Planned Parenthood v. Casey? Will they try and wriggle out of the whole question on a technicality, and both sides live to fight another day? Have pro-lifers finally succeeded in restoring the Supreme Court to correct constitutional rulings on abortion… or were all those votes for pro-life presidents and senators over the past twenty-five years ultimately in vain?

There are a few plausible possibilities:

REGULATIONS STRUCK DOWN (DEFEAT): In this outcome, the pro-lifers lose. This would be pretty bad. First, it would foreclose a huge area of legislation that pro-lifers have used to protect human life (unborn and born). Second, it would be a strong indication that the Court will be unwilling to consider more aggressively pro-life laws, like the heartbeat laws passed in several states, and even fairly routine medical regulations will be subject to years-long judicial review by partisan judges before coming into effect. Third, for the Louisiana regulations to be struck down, the Court would have to reaffirm Hellerstedt, a narrowly decided precedent from just a few years ago — a far weaker precedent than Roe itself. That would mean that, fundamentally, nothing has changed on the Supreme Court with Justice Kennedy’s departure. Abortion would still be an unlimited constitutional right trampling over state laws and regulations of all kinds, and there’d be not a damn thing we can do about it short of revolution. The past twenty-five years of pro-life campaigning to rescue the judiciary would have all been for nought.

I don’t think it’s especially likely the regulations will be struck down like this, but pro-lifers have been burned before: nobody expected Planned Parenthood v. Casey to loudly reaffirm abortion rights, either, but that’s exactly what happened. Justice Kavanaugh’s judicial philosophy remains unclear to me, and everyone should be nervous about Justice Robert’s deep desire to preserve so-called “respect for the Court” among a left-wing press that holds him in complete contempt regardless. I’m nervous about this outcome.

This is the only outcome where the media won’t completely freak out, although they will still write Very Very Angry pieces about how horrible it is the the Court, in upholding Hellerstedt, failed to actually affirm the so-called constitutional right to an abortion.

REGULATIONS UPHELD BUT HELLERSTEDT PRESERVED (MINOR VICTORY): The Court could do what the Fifth Circuit did: obey the Hellerstedt precedent (keeping it on the books) but in a really narrow way (making it much less of an obstacle to pro-life regulations). This would give states considerable flexibility to regulate abortion clinics while allowing the Court to say that they respect precedent. Personally, I think this is the one of the most likely outcomes, because it’s one of Justice Roberts’ very favorite moves, especially if he can bring over a vote from the other side to support him.

And, you know what? It’s an okay outcome. Not great, because it signals they are still too concerned about political considerations to actually uphold the Constitution. Also not great, because the Hellerstedt precedent involves a laborious and highly subjective legal test, which will be applied by ideological judges on both sides every single time a clinic regulation is passed… but, still, upholding the Louisiana regulations should give states a free hand to regulate abortion clinics (many of which cannot survive adequate medical regulation), and suggests at least the possibility that the judiciary will allow cautious, well-considered moves toward other abortion restrictions.

The media will completely freak out if this happens, but it will be mostly hype. A small victory for pro-lifers that enables us to sometimes enact broadly popular measures like the Louisiana regulations will continue things on their current trend (clinic closures are up, abortions are down), but won’t fundamentally alter the trajectory of the American abortion debate. The media is just used to the Left controlling the Court, as it did for the entire period between 1938 and 2018, and is taking the transition very badly.

DISMISSED FOR LACK OF STANDING (BACKDOOR VICTORY): Pro-lifers have advanced the very interesting argument that the plaintiffs in this case (abortion clinics who are suing on behalf of the women they serve) do not have legal standing to sue over this regulation, because the interests of the clinics and the interests of the women they’re supposedly representing are too divergent. (And women who oppose the regulations could just file lawsuits themselves.) If the Supreme Court agrees, the case would be dismissed without ruling on the underlying question of whether Hellerstedt was correct. The Louisiana laws would be upheld by default… although some individual Louisiana woman (or women) could file a future lawsuit, sending the case through the entire court system all over again. (This case was originally filed in August 2014, so… see you in six years!)

It would not be a bad outcome for pro-lifers, though, because abortion clinics have used the “we are suing on behalf of women” excuse to challenge every abortion law we’ve passed in every state for thirty years, bringing their massive reserves of cash and organization to bear on our ragtag movement. Forcing them to at least recruit actual clients who are actually able to claim some kind of legally cognizable injury from abortion regulations could make suing against every pro-life law a bit less legally feasible. And it is sort of weird that abortion clinics seem to be an exception to regular court rules about standing. Still… while many pro-lifers are cheering for this outcome, it doesn’t seem worth it to me, when, really, Hellerstedt needs to go.

I think there’s a very good chance of this outcome. It’s probably the most likely outcome. Roberts will be looking for an out on this case (as discussed above). He may be able to win somebody on the other side over to this opinion, maybe Kagan, therefore showing a bipartisan consensus, which he loves. And pro-lifers are actively campaigning for this in recent legal briefs, so it won’t be interpreted as a betrayal the way either of the lesser outcomes would be.

The media will moderately freak out if this happens, but it will be mostly hype, and they’ll be mostly too confused about the implications to really let loose about it.

(UPDATE: A lawyer friend of mine, whom I greatly respect, and who is routinely involved in national abortion litigation (including before the Supreme Court), thinks I am underselling the effect of this outcome. If clinics don’t have standing, certain kinds of regulations, including these regulations, could become very difficult or even impossible to sue against, because few/no individual mothers would have standing. The Obama Administration used this “nobody has standing” trick a few times to violate the Constitution, as in the suspension of the employer mandate, so it would be nice to see this used to prevent constitutional shenanigans in the judiciary for once. She spoke of other benefits to the pro-life legal movement as well. I’m still getting a handle on what exactly this outcome would mean, but I trust this friend implicitly. A backdoor win on standing might be terrific.)

HELLERSTEDT OVERTURNED (MAJOR VICTORY): As I’ve mentioned, the Court ruled 5-4 in Hellerstedt (technically 5-3 because Scalia died) to strike down clinic regulations. The 5th vote was Kennedy. Roberts strongly opposed the decision at the time, and he joined a scathing dissent.

Kennedy is gone now. If Kavanaugh is the man we think he is based on his lower-court opinions, and Roberts isn’t a coward who abandons his own published opinions, they really should overturn Hellerstedt. Under any reasonable analysis of stare decisis, Hellerstedt just doesn’t have many of the elements that make it a strong precedent, so even fear of overturning precedent shouldn’t hold Roberts and Kavanaugh back.

Practically speaking, overturning Hellerstedt would not just deliver a victory to women and children in Louisiana; it would also make it much easier for other states to pass these medical regulations on abortion clinics, without fear of a court striking them down. It would signal to pro-life activists that the Court is willing to reconsider and overturn various non-Roe abortion precedents. That would encourage states across the country to pass new legislation finding new ways to push the envelope, eventually undermining Roe and Casey to the point where it becomes “unworkable” and they’re overturned, maybe ten or fifteen years from now. So this wouldn’t be the perfect outcome, but it would be very good.

It had better be! It’s why our side put President Trump in office, and God knows the cost of doing that has been terribly high. Based on Kavanaugh’s testimony about precedent in his hearings (before the rape allegation consumed everyone’s attention), I think this is how he would like to approach it. I don’t think Kavanaugh is opposed to overturning Roe, but he wants to build a lengthy judicial line of contrary precedents before finally acknowledging Roe‘s incompatibility with the Constitution. So I consider this the last of the three most likely outcomes, and the only one I would be really, really happy with.

If this happens, the media will completely freak out, with some justification. They’ll call it the imminent end of Roe, when really it’s more like pro-lifers have finally found the first chink in Roe‘s judicial armor plating since we won Gonzales v. Carhart 13 years ago. (The media had a nice solid freak out about that, too… but here we are, it’s 2020, and Roe is still on the books.) It will adjust the trajectory in the abortion wars in favor of life, but only modestly… at least for now.

CASEY OVERTURNED (DECISIVE VICTORY): The Court could go further than overturning Hellerstedt. Hellerstedt is built on Casey, the 1992 precedent that made “undue burden” the standard by which all abortion regulations are judged. It would not be shocking for the Court to revisit Casey, 27 years later, and modify its central holdings. The “undue burden” standard has repeatedly proven vague and unworkable for an entire generation now, with courts swinging back and forth on its meaning based on their partisan makeup, and that’s the kind of thing that ordinarily invites Supreme Court re-review (at least outside the bizarro world of abortion law).

Casey is the worst Supreme Court decision of all time (as Michael Stokes Paulsen has correctly argued elsewhere), so it’d be great to see it gone. Killing off Casey and imposing some new set of rules on abortion would be incredible, and, depending on what the new rules are, it might be effectively the same thing as killing off Roe without the Court actually admitting that’s what they’re doing. This is probably the best we can reasonably hope for from Roberts and Kavanaugh… but, again, depending on how they write the opinion, they could use this to kill Roe in all but name, so we wouldn’t really have anything to complain about.

ROE OVERTURNED (TOTAL VICTORY): Obviously, the Holy Grail. In this outcome, the Supreme Court just comes out and admits what we’ve all known, on all sides, since 1973: there is no constitutional right to abortion. Harry Blackmun made the whole thing up. Abortion would be thrown entirely back to the states, and all of a sudden the pro-life movement, having won a great victory, is thrown into battle on 50 different state fronts, in a huge variety of ways. (After all, those states with heartbeat bills and trigger bans on the books suddenly have no abortion — do they have enough crisis pregnancy centers to take care of the sudden surge in mothers with crisis pregnancies?)

For either of these last two outcomes, the media freakout would be justified. The media in this country is deeply committed to the constitutional right to a dead child, and overturning either Roe or (depending on how it’s done) Casey would effectively end that supposed right. (States could still protect it, and many would.)

This honestly could happen. It’s certainly not likely, I don’t even think it’s wise to get your hopes up… but it could. Indeed, I guarantee you that Justice Thomas will write an opinion calling for the end of Roe regardless of the outcome. I will bet you five dollars that that opinion is joined by both Alito and Gorsuch. That’s 3 votes to kill Roe in your pocket. But you need 5 for a majority.

Roberts is a sane man who knows that Roe is bad law, but he’s also intensely anti-confrontational and intensely worried about the Court’s prestige. And Kavanaugh is still something of an unknown quantity. So I am not holding my breath in hopes that June Medical Services v. Gee will herald the end of Roe. I’m hoping for — and expecting — a modest victory that helps us push the battle for unborn rights another step forward. But you shouldn’t be caught entirely flat-footed if, next June, Roe v. Wade suddenly falls on the ash heap of history where it belongs.

It’s worth remembering that Planned Parenthood kills babies and then sells the body parts.

Planned Parenthood insists that it doesn’t technically gain any profits from these sales, which inspires two responses:

(1) Who cares whether they technically profit or not? Selling baby parts is a particularly ghoulish epilogue to a barbaric practice, and “we sold their innocent, mutilated flesh to research scientists” doesn’t make it any better.

(2) As it happens, Planned Parenthood is demonstrably lying. They absolutely do profit off the sale of baby parts. They scream at the top of their lungs that they don’t (they have to; selling baby parts is illegal). Some outlets dutifully reprint their lies as though it were the last word in the discussion. Nevertheless, Planned Parenthood is demonstrably lying.

Here are the videos proving it: http://www.centerformedicalprogress.org/cmp/investigative-footage/

You can watch the short “highlight reel” clips or the full multihour unedited videos. The highlight reels are punchier, but the multihour videos are more damning, as the weight of evidence just builds up and up and up.

Planned Parenthood defended itself by claiming the videos were “deceptively edited.” This, too, was a lie. Here is the independent forensic audit by Coalfire Systems (a company with no interest in the matter, commissioned by Alliance Defending Freedom) which proves it: http://www.adfmedia.org/files/CoalfireCMPvideosReport.pdf

Perhaps you prefer wading through documentary evidence? Try the document vault here: http://www.centerformedicalprogress.org/human-capital/document-vault/

If that doesn’t do it for you, read the report of the United States Congress Select Committee that investigated these allegations: Final Report of the Select Investigative Panel

They produced 15 criminal referrals. Unfortunately, the evidence needed to convict was mostly locked up in states with non-cooperative Attorneys General. We must hope that today’s ongoing investigations eventually yield indictments.

Planned Parenthood sells baby parts, at market prices, and uses the profits to pad its bottom line. As in the Gosnell murders, where pro-choice state regulators turned a blind eye to rampant abuses of mothers and aborted children alike, Planned Parenthood is able to use the political power of the abortion industry to evade legal scrutiny. As the biggest abortion provider in the country, with a body count of 345,672 in 2018, nobody is better positioned to do so.

Planned Parenthood receives approximately $500 million/year through taxpayer-funded Medicaid. All Democrats currently running for President wish to increase this funding and expand it to include Title X as well.

Happy 47th anniversary of Roe v. Wade. May it finally be the last.