A Supreme Test

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This past Monday, the first Monday in October, marked the beginning of the term for the U.S. Supreme Court – a term that could prove revolutionary. The Court will rule on a direct challenge to Roe v. Wade, the case that in 1973 legalized abortion in all 50 states, and Planned Parenthood of Southeastern Pennsylvania v. Casey, the companion case from 1992.

Dobbs v. Jackson Women’s Health Organization challenges the viability rule established by Roe and Casey prohibiting state regulations on abortion before the preborn baby is viable outside the womb. It had been generally accepted that viability is around 24 weeks gestation, but medical advancements have brought that number down to 22 weeks, with some surviving at 20 to 21 weeks. The point being: Viability changes.

Justices will hear arguments December 1st. Before then, they have at least 81 briefs to read in favor of the Mississippi law (Dobbs), which limits abortion after 15-weeks gestation.

Among them are:

  • The Mississippi Attorney General’s brief that asks the Court directly to overturn Roe and Casey and acknowledge the state’s right to regulate abortion even before the preborn baby is viable. It states, “Under the Constitution, may a state prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion.”
  • An amicus brief signed by 240 women scholars and professionals, including myself, who reject the argument that the “ability of women to participate equally in the economic and social life of the Nation requires the availability of abortion.”
  • An amicus brief signed by state-based Family Policy Council allies, including Center for Arizona Policy stating that, “Th[e] Court’s abortion jurisprudence prevents states and citizens from giving proper regard to customary and natural law, and thereby hamstrings their efforts to influence state public policy that would protect the fundamental and absolute common law right to life possessed by prenatal persons.”
  • An amicus brief signed by 24 Attorneys General, including Arizona Attorney General, Mark Brnovich. The brief points out the lack of basis for Roe evident in the ever-changing requirements states must meet when regulating abortion, “Th[e] Court has propounded a constitutional law of abortion for half a century, and no one can describe it with any certainty. Because the purported right to abortion lacks any textual or historical foundation, it is defined only by the Court’s constantly changing opinions.”
  • An amicus brief signed by 12 governors, including Arizona Governor Doug Ducey, asking the Court to take the “opportunity to correct the mistakes in its abortion jurisprudence and recognize that the test and original understanding of the Fourteenth Amendment have nothing to do with abortion. Rather that creating a federal constitutional right, the Court should leave regulating abortion to the states, where the people may act through the democratic process.”

The Court could rule one of several different ways, including:

  1. It could overturn Roe and Casey, uphold the Mississippi 15-week limit to allow states to determine abortion related laws prior to viability.
  2. It could change the viability rule to allow states to have more room to regulate pre-viability abortions.
  3. It could rule that states have a significant interest in protecting the preborn, sending the Mississippi case back down to the lower court to hear the state’s rational basis argument.
  4. It could strike down the Mississippi law, upholding Roe and Casey.

For more details on the Court’s considerations, likely outcomes, and other pro-life cases on the horizon that could end up at the Supreme court, listen to this week’s Engage Arizona podcast with Kevin Theriot, Senior Counsel and Vice President of the Center for Life with Alliance Defending Freedom.

A ruling in the Dobbs case will likely come by June 30, 2022.


  • Read the Arizona Attorney General’s motion to allow a CAP-supported pro-life law to go into effect. Read more here.
  • A Federal judge temporarily blocked Texas’ heartbeat law while it makes its way through the courts.
  • The U.S. Attorney General issued a letter warning parents who are standing up against Critical Race Theory at local school board meetings. The AG threatens parents: the FBI is getting involved. Read here how that letter parrots the National School Boards Association and “weaponizes the DOJ” to intimidate parents.
  • Read about the real effort behind the huge spending bills in Congress in World magazine. “The entitlements are designed to bring millions of the middle class into the expectation of a government check and expanding government control. If the government writes the check, government control follows. That same middle class will end up eventually paying the tax bills, but by then more citizens will be hooked on those government checks. The architects of this legislation are counting on it. The real ambition is to reshape and transform American society.”

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