CCCG panel explores possibilities within the Dobbs decision and various possible resulting political scenarios
“I give it [Dobbs] about a 90 percent chance of overturning Roe v. Wade.” Professor Sherif Girgis offered this bold prediction last Thursday in a panel conversation sponsored by the Center for Citizenship and Constitutional Government (CCCG) about the case argued in December, Dobbs v. Jackson Women’s Health Organization.
The conversation, titled “What Happens if Roe Is (Not) Overturned?,” brought together Girgis, Professor Christina Wolbrecht of the political science department, and Representative Dan Lipinski, Illinois Democrat, who, according to National Review, was the last strongly pro-life Democrat in Congress until his loss in the 2020 primary election. Introduced by Professor Phillip Muñoz, director of the CCCG, and Menard Family Tocqueville Fellow Veronica Maska, Girgis spoke first, followed by Wolbrecht and then Lipinski.
Girgis, a former clerk for Justice Samuel Alito at the Supreme Court and current law professor at Notre Dame Law School, is one of many former Court clerks and legal scholars who believe that the decision in Dobbs will not only uphold the Mississippi law at issue, but will go a step further in overruling the longstanding precedents in Roe and Planned Parenthood v. Casey, which assert that there is a constitutional right to abortion found in the Equal Protection Clause of the Fourteenth Amendment.
Girgis, who commented on the legal issues in Dobbs, laid out the history of abortion jurisprudence and then offered an analysis of the current case. Girgis noted that the key precedent offered by both Roe and Casey is that abortion bans are not permitted when the state does not have a compelling interest. This compelling interest only begins after viability, which is set at 24 weeks of pregnancy by the Court. The law passed by Mississippi bans most abortions after 15 weeks, which violates the constitutional law established by Roe and Casey. According to Girgis, there is almost no doubt that the Court will uphold the Mississippi law, because Justice Kavanaugh signaled in oral arguments that he would vote to support it.
The big question in Dobbs is whether the Court will overturn the right to abortion established in Roe and Casey or whether the Court will “pull the line [prohibiting abortion bans] back to somewhere between 0 and 15” weeks of pregnancy. As he has explained elsewhere in more depth, Girgis concludes that the Court, with its “much more formalist” composition, will be unable to uphold the Mississippi law without overruling Roe and Casey, since the law flatly violates them. Further, contriving a new line before which abortion bans are forbidden will be very difficult and does not have much basis in the history of the common law, since more than three-quarters of the states which ratified the Fourteenth Amendment had banned abortion from conception.
Wolbrecht, a social scientist who studies American democracy, noted that over the past thirty years, the question of federalism has become increasingly important as Democrat-controlled and Republican-controlled states have become “farther and farther apart in their policy regimes.” Thus, the question of what happens to the 800,000 abortions performed annually in the United States is very much uncertain.
Wolbrecht continued by describing how abortion first became a federal issue, partly as a result of the nationwide decision in Roe, and then explained how the national parties became polarized on the issue. For Republicans, she argued, abortion, perceived as a “threat to traditional families [and] traditional social norms,” became a key issue with the rise of the “religious right.” Democrats, in contrast, “[were] eager to grab this socially and politically active feminist group, and they move[d] in a different direction,” Wolbrecht argued. As a result, both parties committed in the 1980s to appoint judges friendly to their cause and cemented the divide present today.
After the background provided by Girgis and Wolbrecht, Lipinski, a Catholic who sides with Democrats on many issues, but not abortion, offered a plethora of futures for a post-Roe America. He began by suggesting that the Dobbs decision “could, not will,” cause a great shift towards polarization. If the Mississippi law is upheld, some national Democrats will be eager to run on the issue of abortion in the midterm elections, with the thought of passing a federal law supporting abortion, such as the one which the House passed in September 2021 permitting abortion up to birth.
Similarly, there is support among influential pro-life organizations for a federal ban on abortion to some extent. Lipinski noted that if Mississippi’s law is upheld and Roe is overturned, a new playbook will be opened. He said, “For Republicans, politically the smartest thing for them to do is … say, ‘We will support these [certain] restrictions on abortion…’ That could shake up politics.” Further, because of popular support for pro-life positions, especially in certain districts, the Democratic party would have to moderate itself and vote for some pro-life positions. Likewise, popular opinion dictates that it would be imprudent for Republicans to push a full ban on abortion at the federal level, Lipinski argued.
The all-or-nothing approach thus poses significant problems for both parties, and will thus lead to a series of creative, moderate policies. If, however, Roe is not overturned, the mainstream pro-life legal movement will have suffered a great defeat and, Lipinski predicted, its influence will decline greatly. Lipinski projected that many Republican voters will give up and either abandon politics or that formerly single-issue voters will begin to vote for Democrats, since they see no possibility of overturning Roe.
The packed room at the CCCG was a strong indicator that although the future is very cloudy, the Dobbs decision is one of the most eagerly awaited moments of the spring or summer.
Zef Crnkovich is a senior from Falls Church, Virginia, majoring in Classics. As a dispenser of (often accurate) hot takes, he kindly requests that you please send your hot takes to jcrnkovi@nd.edu.
Image: Professor Vincent Phillip Muñoz introduces panel at post-Roe event
Image credit: Center for Citizenship and Constitutional Government
