The confirmation of Amy Coney Barrett has invigorated the Pro-Life movement by providing Republican-appointed justices a 6-3 majority on the Supreme Court of the United States (SCOTUS). Roe v. Wade appears vulnerable, and the ability of Pro-Life states to protect preborn children from state-sanctioned killing may be within reach. SCOTUS issued Roe, and only SCOTUS can reverse that legal fiction.
For SCOTUS to reverse Roe and enable states like Texas to protect preborn children, a legal challenge of an already existing Pro-Life law must first advance through lower courts. The justices are extremely selective in granting a hearing to those cases appealed to SCOTUS for review. Therefore, the Pro-Life movement must work strategically and tirelessly to ensure the best cases navigate the legal maze to receive a possible hearing before SCOTUS.
Several Pro-Life cases raising specific questions of the court have worked their way through the lower court system before arriving at SCOTUS’ doorstep for determination.
| Case Name | State | Policy in Question | Status of Case in Circuit Court |
| Food and Drug Administration v. American College of Obstetricians and Gynecologists | Maryland | FDA authority to impose certain in-person regulations on the abortion pill during the COVID-19 pandemic. | The Fourth Circuit Court of Appeals upheld the prohibition on FDA enforcement of in-person requirements during pandemic while FDA appeals. The case has been appealed to SCOTUS. |
| American Medical Association v. Azar | Oregon | Prohibiting abortion providers and their affiliates from receiving Title X family planning funding. | The Fourth Circuit Court of Appeals invalidated the Title X rules, while the Ninth Circuit Court of Appeals upheld the rules. The case from the Ninth Circuit has been appealed to SCOTUS. |
| Jackson Women’s Health Organization v. Dobbs | Mississippi | Prohibits abortion at 15 weeks post-fertilization | The Fifth Circuit Court of Appeals ruled against the abortion ban. The case has been appealed to SCOTUS. |
| Whole Woman’s Health v. Paxton | Texas | Dismemberment Abortion Ban | The Fifth Circuit Court of Appeals three-judge panel ruled against the abortion ban. |
One such case is FDA v. American College of Obstetricians and Gynecologists, involving the Food and Drug Administration’s (FDA) authority to impose regulations on the usage of the abortion pill during the COVID-19 pandemic. Earlier this month, SCOTUS punted and sent the case back to the district court level for further litigation, but the case may once more arrive back at SCOTUS. While the legal questions associated with FDA aren’t expected to have a lasting impact on SCOTUS’ abortion jurisprudence, the court has the authority through such a case to craft an opinion with a broad scope that directly addresses the legal questions at the heart of Roe and other abortion decisions.
Another case before SCOTUS is a lawsuit challenging President Trump’s Pro-Life rules on Title X family planning money, which prohibits Planned Parenthood and other abortion businesses and affiliates from receiving these taxpayer dollars. Because this case is nearly identical to a decades-old case in which SCOTUS sided with the Pro-Life movement, the circuit court ruling siding with the Trump administration is likely to stand, probably without a hearing by SCOTUS.
More compelling are the dozens of lawsuits originating from Pro-Life laws passed by the states, with 17 Pro-Life state laws currently winding their way through federal circuit courts. These Pro-Life laws range from laws prohibiting dismemberment abortions to laws protecting preborn children who can feel pain. Each case is potentially one ruling away from appeal to SCOTUS.
Jackson Women’s Health Organization v. Dobbs has already arrived at SCOTUS. The case involves a Mississippi law prohibiting abortions at 15 weeks post-fertilization. Mississippi raises direct and specific questions not asked of SCOTUS since Casey in 1992:
- Whether all pre-viability prohibitions on elective abortions are unconstitutional; and
- Whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children, and the integrity of the medical profession and society should be analyzed under the “undue burden” standard of Planned Parenthood v. Casey or the benefits and burdens balancing test of Whole Woman’s Health v. Hellerstedt.
These questions answer Chief Justice Roberts’s call to directly challenge SCOTUS precedent on abortion. SCOTUS’ insistence that pre-viability abortions are somehow more ethical than post-viability abortions is one of the fallacious hallmarks of abortion jurisprudence. Rather than skirt this question, Mississippi is heeding Roberts’s advice and asking SCOTUS to examine this flaw. However, because no circuit court has ruled favorably on a law similar to Mississippi’s, SCOTUS hearing this case is unlikely.
Of all these cases, the Texas case on the Dismemberment Abortion Ban is the best vehicle to force SCOTUS to consider the fallacious precedent of Roe, since this case could establish a circuit split. In Whole Woman’s Health v. Paxton, the United States Court of Appeals for the Fifth Circuit affirmed a district court ruling invalidating the Texas Dismemberment Abortion Ban, which prohibits tearing a living preborn child from his mother’s womb limb by limb. The State of Texas is expected to appeal en banc, meaning all 17 judges of the circuit court would hear the case. Two circuit courts have blocked dismemberment bans from Kentucky and Alabama. If the Fifth Circuit were to rule in favor of the law en banc, then SCOTUS would be forced to hear the case. The Dismemberment Abortion Ban is the exact kind of case Texas Right to Life wants before SCOTUS. This law poses specific legal questions pertaining to the state’s interest in preborn life and thereby challenges SCOTUS’ abortion precedent. In the past, Pro-Life cases have focused on regulating the abortion procedure or the abortion industry, rather than banning abortions outright. Both Mississippi’s 15-week ban and the Texas Dismemberment Abortion Ban employ the proper legal strategy to undermine Roe.
