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Dobbs and Overturning Roe v. Wade

Last week, the U.S. Supreme Court heard the case of Dobbs v. Jackson Women’s Health Organization, which deals with Mississippi’s 15-week ban on abortion. Experts on both sides of the abortion issue agree that Dobbs has the potential to overturn Roe v. Wade in some way.

Immediately following the oral arguments before the Court on December 1, NC Family was fortunate to interview the President and CEO of Alliance Defending Freedom, Michael Farris, for our Family Policy Matters radio show and podcast. Farris unpacks the oral arguments and the likelihood that Roe v. Wade will be overturned, as well as what a post-Roe world could look like.

Farris explains that, while a complete overturning of Roe is possible and a complete upholding is less likely, the Supreme Court might address the “viability standard.” Roe v. Wade and Planned Parenthood v. Casey created a “viability standard,” which is the baby’s ability to survive outside of the mother’s womb. “But viability keeps changing because science keeps getting better,” says Farris. “Medicine keeps getting better, and the standard has just proven to be really unworkable. […] It’s so obvious what’s going on in the womb. It’s so clear, the effect of all this on the baby, and in any other context, this kind of barbarity would not be allowed. It’s just atrocious, and we’ve got to get this behind us and get on with the business of being a country that’s about protecting life rather than taking it.”

Farris notes that some of the more liberal justices on the Supreme Court stated in the Dobbs oral arguments that overturning Roe would make a mockery of the Court and delegitimize it in the eyes of America. “What has delegitimized the Supreme Court is the propensity to insert the Court into what the Constitution gives over to the democratic process,” argues Farris. “It’s a plain fact that the Supreme Court delegitimized itself when it made the decision of Roe v. Wade. What we would really be doing is getting the Supreme Court out of the political business and back into the business of being a court.”

Tune in to Family Policy Matters this week to hear Michael Farris discuss the Dobbs case, and why the U.S. Supreme Court should overturn Roe v. Wade.


Family Policy Matters
Transcript: Dobbs and Overturning Roe v. Wade

TRACI DEVETTE GRIGGS: Thank you for joining us this week for Family Policy Matters. If you’ve been paying attention recently, you know that the U.S. Supreme Court is considering a case that many people—on both sides of the aisle—believe has a chance to overturn Roe v. Wade and throw abortion regulation back into the laps of individual states. But that’s not all that’s on the docket for this term that conservative, family-minded Americans should be watching.

Well, we’re very fortunate to have as our guest today the president and CEO of Alliance Defending Freedom. Michael Farris is here to discuss these important cases, several in which ADF is actively involved.

Michael Farris, welcome to Family Policy Matters.

MICHAEL FARRIS: It is great to be with you, and I want to give a shout out to my five North Carolina grandchildren that are out in the Raleigh area.

TRACI DEVETTE GRIGGS: Great, great! We’re in the Raleigh area as well, so I hope they’re listening. Of course, we have to start with what is become commonly known as the Dobbs case. So I know you’re paying close attention and were involved with that case. What were your primary takeaways from that hearing?

MICHAEL FARRIS: The longer I listened to the oral argument, the happier I became, to the point of being ecstatic. It was just above and beyond all that we could have asked or think. The solicitor general of Mississippi who argued the case (Scott Stewart) did an absolutely fabulous job and made bold arguments, did it winsomely with the appropriately conversational, mild, professional manner. It was pitch perfect, but he made really strong arguments as to why Roe v. Wade should be overturned. The other side agreed in one sense, and that is that it was kind of an all-or-nothing moment. They were saying Roe is on the line, and they were just asking the court to just simply uphold Roe. You would have thought that they might try for some kind of halfway measures to try to resolve the case in a way that leaves Roe basically intact with some modifications, perhaps, but they didn’t go for that. They tried just to preserve it in its most egregious form.

And so I believe that the court is certainly going to make a decision about whether they’re going to do it, and I feel very, very strongly that in some form, the Mississippi law that bans abortion at 15 weeks is going to be upheld. But whether it’s all the way to reversing Roe v. Wade, we’re just going to have to wait and see. But it’s a strong possibility that that will happen.

TRACI DEVETTE GRIGGS: Wow, so you’re saying then—and I think I’m hearing this pretty clearly—that these expectations of the possible overturning of Roe v. Wade are not overblown?

MICHAEL FARRIS: No, not at all. It’s very, very possible.

TRACI DEVETTE GRIGGS: Now you mentioned a possible decision that substantially alters the effect of that abortion law without actually overturning it. So what do you think the likelihood is, then, that that might happen instead?

MICHAEL FARRIS: The chances that they’re just going to reverse or just going to uphold Roe and knock down the Mississippi law: I would rate that as really, really low. So the alternative here is that they’re going to modify the viability standard in some way. The current regime is that viability is the line that the court uses. Originally in Roe v. Wade, it was trimesters. First trimester, states could do this; second trimester, states could do that; third trimester, states could do another thing. But they changed that in the 1990s in the Planned Parenthood v. Casey model and said, “No, we’re going to use viability as the standard.” Well, viability keeps changing because science keeps getting better. Medicine keeps getting better, and the standard has just proven to be really unworkable. So they might just take viability down as a standard altogether and make up some new things. Now, the problems with doing that were pointed out by both sides, but I think that simply removing viability might be the alternative. The net result would be states would be given some greater latitude in regulating abortion, but probably couldn’t ban it effectively, and so it would be a muddled mess, frankly, but that’s a possibility.

TRACI DEVETTE GRIGGS: So I think your point is a great one. When Roe v. Wade and Casey were decided, the technology was so much different, what we knew about the unborn child was so much different, and that’s a game changer, isn’t it?

MICHAEL FARRIS: It is. There was well more than enough known for the court to have gotten it right in Roe v. Wade or Planned Parenthood v. Casey. But their excuses have become thinner and thinner over time, to the point of being laughable. It’s so obvious what’s going on in the womb. It’s so clear, the effect of all this on the baby, and in any other context of thinking, this kind of barbarity would not be allowed. But it is being allowed because that’s the religion of the Left “woke,” and they are seeking to preserve their right to do what amounts to human sacrifices for their personal convenience. It’s just atrocious, and we’ve got to get this behind us and get on with the business of being a country that’s about protecting life rather than taking it.

TRACI DEVETTE GRIGGS: I know I’ve been reading in the last few days that some of the more liberal judges on the High Court were quoted as saying that if Roe v. Wade is overturned, it will basically make a mockery of the U.S. Supreme Court. So do you think that overturning this or significantly changing Roe v. Wade would delegitimize the High Court in the eyes of many Americans? And I’m talking both sides here.

MICHAEL FARRIS: Well, it will delegitimize it in the eyes of people who think that the purpose of the Court is to do what Leftists want them to do. And there are people who legitimately believe that’s the actual purpose of the Supreme Court, but they’re wrong. What has delegitimized the Supreme Court is the propensity to insert the Court into what the Constitution gives over to the democratic process, to the process of state legislatures, to the Congress, and so on. Because the number one rule of the Constitution is found in Article One, Section One: all legislative authority, meaning all power to make law, is vested in Congress. And the same thing is true at the state level in the state legislatures. So the Supreme Court shouldn’t make law, and everybody has heard the phrase, “In Roe v. Wade, the Supreme Court legalized abortion.” Well, the Supreme Court’s not supposed to legalize anything; that’s the job of legislatures. It’s a plain fact that the Supreme Court delegitimized itself when it made the decision of Roe v. Wade. What we would really be doing is getting the Supreme Court out of the political business and back into the business of being a court. Now there are other decisions they’ve made that could also be attributed to this, but this is the pinnacle; this is the most important of these political type decisions that the Supreme Court has made. It would do far more to actually bring back legitimacy to the Supreme Court than any other thing they could possibly do.

TRACI DEVETTE GRIGGS: And there is a history, right? There is at least one other major example of this type of overarching ruling being reversed once it was discovered that it was really ill-advised, right?

MICHAEL FARRIS: There’s many, but one of the more famous ones is Plessy v. Ferguson, which was the “separate but equal” doctrine that the Supreme Court made up out of thin air in the 1870s. Finally, in 1954 in Brown v. Board of Education involving desegregation of the public schools, the Court reversed Plessy v. Ferguson, said it was wrong. You can say all the things that you want to say in trying to defend Roe, saying, “Oh, well, people rely on. It has been there for a long time.” All those things could be said about Plessy v. Ferguson, but if something’s deeply wrong—it’s wrong as a matter of constitutional law, it’s wrong morally—you just have to fix it. So the role of precedent or stare decisis (kind of the technical term here) is to say, “Let’s be careful. Let’s not reverse things willy nilly.” So you basically say, “Are you really sure?” And then if the answer is, “Yeah, we’re really sure that we were wrong the first time,” then you reverse it. The Constitution is the highest law of the land, not Supreme Court decisions. And so if the Constitution concludes that Roe was wrong, we have to follow the constitution, not what Roe said.

TRACI DEVETTE GRIGGS: We’re expecting to hear a ruling in the Dobbs case in June-ish, correct?

MICHAEL FARRIS: Not later than June, and the more controversial a decision, the more likely it is to be in late June. The court wraps up all of its business for each year by the end of June.

TRACI DEVETTE GRIGGS: So many people have misconceptions that if Roe v. Wade is overturned, it will make abortion illegal. I’ve heard that so many times over the years, but this is not the reality, is it? So what will happen?

MICHAEL FARRIS: Well, it will return the issue of abortion to state legislatures. Now, there are about 10 to 12 states with laws in place that will be triggered by a reversal of Roe, and abortion will become banned in those states. There’s always some exceptions—in most cases, it’s the life of the mother would be the exception. The other 38 to 40 states, you’d start off where abortion would be technically legal still, but there’ll be a number of those where the state legislature will act pretty quickly, and so I think within a year, year and a half or so after a decision like this, you’re going to see abortion illegal in probably about half the country, 20 to 25 states. Of course, the goal of pro-life organizations like the one that I help to lead is to have the right to life protected in all 50 states, but that’s going to take some time and will be a state-by-state decision.

TRACI DEVETTE GRIGGS: Let’s talk about some other things, because the Dobbs case is not the only thing that conservative families need to be keeping an eye on regarding the U.S. Supreme Court session. What are some other things that we need to watch for?

MICHAEL FARRIS: ADF has three cases pending at the Supreme Court, all involving the clash between religious freedom and LGBT claims. We have a case coming out of Seattle for the Union Gospel Mission that will be before the court in one of their conferences to decide whether they’re going to take the case or not. In that case, a self-identified LGBT person who openly says that they disagree with the religious doctrine of the Union Gospel Mission, and they hope that the Union Gospel Mission changes its doctrine. They applied for a job there, and Union Gospel Mission said, “No, we only hire people who agree with our philosophy because we’re engaged in ministry here, and you have to believe in what we believe.” The Supreme Court of Washington unanimously ruled against the Union Gospel Mission after the trial court ruled for the mission. So we’re very hopeful the Supreme Court is going to take that case and protect the right of Christian ministries to hire people who actually believe in the Christian principles that the ministry stands for.

There’s a very similar case involving a college in Massachusetts, Gordon College, that has a professor that had a similar kind of situation. They declared that they were in an alternate lifestyle and they didn’t agree with the mission and the doctrine of the college anymore, and then college fired them. So that case is also pending before the court.

The final one is called 303 Creative, where a website developer under Colorado law is required to develop websites for gay activist organizations, even though they don’t agree with it. So it’s compelled speech, and the Court of Appeals said, “We can compel you to speak a message you don’t agree with, and that does not violate the First Amendment,” which is just an astounding claim. I feel very, very good about the chances of the Supreme Court taking that case, and it could be the vehicle where the Court kind of finally, squarely addresses the issue of what happens when there’s a clash between freedom of speech, freedom of religion, and gay activist claims. So all three of those cases are pending and will probably all be determined whether or not the Court’s going to take them by middle to late January.

TRACI DEVETTE GRIGGS: We’re just about out of time. Before we go, Michael Farris, where can our listeners go to get updates on all of these cases, but also information about who you are and how they can get help if they encounter some of these issues?

MICHAEL FARRIS: Our website is ADF I encourage people to go there, and especially we’re looking actively for cases where people’s children are being forced to be indoctrinated in critical theory—critical race theory, critical gender theory—and we’re on the lookout for cases of that kind. So if you’ve got situations in any area relative to religious freedom, right to life, parental rights, freedom of speech, please go to our website, contact us, and we’ll take a look at your situation.

TRACI DEVETTE GRIGGS: Michael Farris, President and CEO of Alliance Defending Freedom, thank you so much for being with us today on Family Policy Matters.

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