The upcoming Supreme Court abortion case could be “the most important” case of “our lifetimes,” predicts Alliance Defending Freedom senior counsel Erin Hawley.
Hawley, mother to three and wife to Missouri Sen. Josh Hawley, a Republican, discussed Dobbs v. Jackson Women’s Health Organization during a podcast interview with The Daily Signal.
The Supreme Court will begin hearing arguments in the highly divisive case on Wednesday.
“History is clearly on the pro-life side, and there’s no way you can make a historical argument for a deeply-rooted right to abortion,” Hawley said.
The Alliance Defending Freedom senior counsel explains the Mississippi law at the center of the Supreme Court case, how the justices may decide on Dobbs v. Jackson Women’s Health Organization, why most abortion advocates don’t properly understand Roe v. Wade, and more.
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Listen to the podcast below or read the lightly edited transcript.
Mary Margaret Olohan: Joining me today is Erin Hawley, mother of three, wife to Sen. Josh Hawley of Missouri, and senior appellate counsel at Alliance Defending Freedom. Erin, thank you so much for joining me today.
Erin Hawley: Thanks so much for having me.
Olohan: On Wednesday, the Supreme Court will be hearing a major abortion case, Dobbs v. Jackson Women’s Health Organization, a case involving a Mississippi law that bans abortion after 15 weeks. Erin, to start us off, can you explain what this law entails?
Hawley: Absolutely. So I think this case could be the most important of our lifetimes. And the reason being is that Mississippi has passed a really commonsense law.
So, Mississippi restricts abortions, as you said, after 15 weeks, it has robust exceptions for the health and life of the mother. It allows months for women to get an abortion. It is consistent with over 90% of the abortion laws nationwide. And it applies, I think, most importantly, at a time in which at 15 weeks, an unborn baby can open and close her fists, she can open and close her eyes, she can hear her mother’s voice, and she can quite likely feel pain. And despite all of this, the lower court struck Mississippi’s law down under Roe and Casey.
Olohan: So why is this case such a big deal right now? Why are we seeing so many abortion advocates freaking out about this, so many pro-life advocates making a huge deal out of this?
Hawley: It’s really the first time in 30 years in which the Supreme Court has really had to confront the realities of Roe and Casey head-on. And the realities under those laws are that it allows states to allow abortion up until the very last minute of pregnancy, and it forbids states from protecting unborn life until viability, which is about 22 or 24 weeks.
So it’s sort of this one-way ratchet, where states cannot do anything about protecting unborn life until viability, but states, on the other hand, could choose to allow abortions really late in the term. And this is the first chance the court has had in 30 years to revisit Roe and Casey.
And to look at those opinions just a second, they’re likely the worst Supreme Court opinions that are still on the books. And the reason for this is that they make up, from sort of whole constitutional cloth, this right to an abortion. You can hardly find a constitutional scholar who would actually say the Roe v. Wade is rightly decided, and yet here we are 50 years later, saddled with its consequences.
Olohan: And science has progressed quite a bit since Roe v. Wade. What do we know now about an unborn baby at 15 weeks?
Hawley: Absolutely. As the chief justice said in a different context, “History didn’t stop in 1973.” So if you look at an ultrasound from 1973, when Roe was decided, you really can’t see much at all. And today, in contrast, we know a tremendous amount about human development and development of the unborn.
Again, at 15 weeks, when the Mississippi law applies, a baby can smile, she can move about in her mother’s womb, she can stretch, she can hiccup, her internal organs are there and functioning, and she’s in every way a fully formed human being. And again, this is at 15 weeks. And currently, states cannot protect unborn babies until 22 or 24 weeks along, when their development has progressed even beyond these points.
Olohan: You’ve previously written that, “The days of Roe v. Wade may finally be numbered.” And that really stood out to me. What happens if Roe is overturned? What does a world without Roe v. Wade look like?
Hawley: That’s a great question. And so, because the Constitution says nothing about Roe, it would return the matter to the democratic process. Then you would have states who are able to debate the policy matter of abortion, and you would allow states to protect unborn life. So states like Mississippi, other states would be able to protect life when it is so clearly human.
Olohan: And we’ve seen a lot of abortion advocates paint this picture of chaos and danger and destruction and restriction if Roe v. Wade is overturned, is that accurate?
Hawley: I don’t think so. There are laws that would come into effect if Roe v. Wade were overturned, and almost all of those laws have exceptions for the life and health of the mother, for situations like rape and those sorts of things. So you are going to have commonsense laws coming out of the state legislatures, who are able to both protect the life of the unborn as well as to protect women’s health. So I think you’re going to see just good laws coming out of our state legislatures.
Olohan: So for example, in California, you might see some very progressive abortion laws, whereas in Texas, you might see very pro-life laws?
Hawley: Absolutely. So you’re going to have different laws in different states, but you’re going to have the people be able to have a say in that. And you’re going to have … pro-life advocates that will go to California and show pictures of ultrasounds of babies at 15 weeks and say, “You might want to reconsider these sorts of late-term abortions.”
Olohan: That’s really interesting. So it would change the ballgame for advocacy against abortion?
Olohan: And why do you think that the Supreme Court took up this case in the first place?
Hawley: That’s a really good question. The Dobbs case actually has a really interesting history. The case was on the Supreme Court docket for nearly a year, which is almost unheard of. So the case kept being, the term is relisted, so the court kept reconsidering whether to decide this case over and over again.
And then after Justice Amy Coney Barrett was confirmed to the court, the court finally took the case. And you have to have four votes at the Supreme Court to grant cert, or in order to hear a case. So presumably she made a difference.
And so I think this is really good news for Mississippi. It seems like you at least have four votes that are interested in revisiting the Supreme Court’s abortion jurisprudence, and this idea that maybe they think the commonsense law in Mississippi should withstand constitutional scrutiny.
Olohan: And is there anything in the Constitution that establishes a right to an abortion?
Hawley: Absolutely not.
Olohan: Well, we hear this so much. We hear that so much from abortion advocates. Why is that?
Hawley: I think it’s sort of become entrenched in advocacy for pro-abortion proponents, but the fact of the matter is it’s just untrue. And again, you could hardly find a constitutional scholar who will say that Roe v. Wade is rightly decided.
And if you think of some of the really influential liberal law professors, in fact, they come up the other way. There was a professor named John Hart Ely, and he called Roe bad because it’s bad constitutional law, and didn’t even have an obligation to try to be constitutional law. And you have professor Larry Tribe, again, another influential liberal law professor, who talks about Roe sort of coming up like a hologram from emanations and penumbras of various amendment. So there’s this real sense in which the court simply made up the right to an abortion.
It’s nowhere in the Constitution, and the court since then has sort of reaffirmed that if the court is going to make up stuff, then at least it needs to be deeply rooted in our nation’s history or tradition. So this is under the 14th Amendment, and there’s a 14th Amendment interest in liberty.
And sometimes the court finds that certain things are protected within this liberty interest, but again, the right to abortion ha has no sort of tether to our nation in history. In fact, in 1868, when the 14th Amendment was passed, about 30 of 37 states had restrictions on abortion. So there simply is no historical right to an abortion, and nor is it located anywhere in the Constitution’s text, structure, or history.
Olohan: So 30 out of 37 states had restrictions on abortion when the 14th Amendment was passed? That’s not something you hear talked about very much.
Hawley: No, not at all. And the reason being is that the history is clearly the pro-life side, and there’s no way you can make a historical argument for a deeply-rooted right to abortion.
And I think Roe v. Wade is often misrepresented. You see abortion advocates now, they say, “If Roe v. Wade is overturned, that’s the end of abortion in America. You’ll be in a back alley with a hanger.”
Why is Roe v. Wade misrepresented in this way? And what does Roe v. Wade actually mean for abortion?
Roe v. Wade takes the matter out of the democratic process. So instead of state legislatures like Mississippi, state legislatures like California deciding what is the best way to protect women and children in their state, you have a majority of justices—in Roe it was seven men who decided that women should have this right to abortion.
And as a woman, as a working mom, I sort of find their language distressing. Justice [Harry] Blackmun in Roe actually said that maternity would force upon women this bleak and distressful life. And I think that’s just not a proper view of motherhood or womanhood. And it’s something at least that should be debated in the public branches, and the democratically-elected branches, and not decided by a majority of Supreme Court justices.
Olohan: So how do you think the justices will decide on this case?
Hawley: It’s always tough to predict Supreme Court opinions, but looking at the tea leaves, it looks like there’s a couple of ways the court could come out.
I would be surprised if the court does not uphold Mississippi’s law. There was no reason to take the case. There were not any splits among the lower courts. They were all in consistent agreement that a state could not do what Mississippi did. It could not even enact a commonsense law that restricted abortion at 15 weeks, when a baby can do all these things we talked about.
So the court didn’t have to take the case. There was no sort of controversy that it needed to clear up. So the fact that the court took the case indicates that they’re interested in at least upholding Mississippi’s law. They could do this by saying, for example, that the law does not impose an undue burden.
If you look at the percentage of women that get abortions before 15 weeks, I think it’s something like 95%, close to that. So the court could say, “This is not an undue burden. Mississippi’s law makes sense, it protects both women and children, it’s fine.”
Hopefully the court will say a lot more than that. Hopefully the court or will say, “Look, Roe was wrong the day it was decided.” And if you look at these factors that are called stare decisis factors, they just reveal that that decision has gotten more wrong over time. As you said, science didn’t stop in 1973, we know a lot more about unborn life.
And one thing that’s really compelling to me is if you look at the Roe opinion itself, it talks about the potentiality of life. Now we know that’s nonsense today. The human life at 15 weeks is absolutely human life. It’s not a potential life. So these things have changed since Roe. So I think it’s possible, and hopefully likely that the court will go ahead and overrule Roe versus Wade.
Olohan: And currently there’s a large number of justices on the Supreme Court who were appointed by Republican presidents. That doesn’t mean they’re going to rule the way conservatives want them to. Do you have any thoughts on whether these justices are open to doing something as big as overturning Roe v. Wade?
Hawley: I think it depends upon the justice. So these justices, as you said, there are six appointed by Republican presidents, but not all of these justices think exactly alike.
So I think you have a few justices who are comfortable being quite bold and would overturn Roe v. Wade tomorrow. I think you have some other justices who are a little more incremental and would consider maybe some more intermediate steps.
But I think when confronted with sort of the enormity of the errors made in Roe, as well as the scientific evidence and the changes since Roe, I’m hopeful that even the incremental justices will see that the best course is just to reverse Roe.
Olohan: And I hear that Justice [Brett] Kavanaugh is a big question mark in this case; would you say that’s accurate and how do you think he’ll decide on this case?
Hawley: So one thing that’s interesting about Justice Kavanaugh is he came up from the D.C. Circuit, and the D.C. Circuit does not hear many abortion cases because they don’t hear cases that come up from the states.
So Justice Kavanaugh does not have a long record on abortion. I think he only had one abortion case, actually, in his entire tenure on the D.C. Circuit. And he came out the right way on that case. It is a pro-life ruling on his part, but we don’t have a lot of data on that.
Again, I hope that when Justice Kavanaugh is confronted by all the problems with Roe and all of the scientific advancement, that he will be a vote to reverse, but we don’t have a lot of data.
Olohan: His confirmation hearing was accompanied by very, very angry sentiment about abortion. Abortion advocates said that Kavanaugh coming to the Supreme Court would mean the end of Roe v. Wade. Do you anticipate any kind of great backlash against him or against the court if that should happen?
Hawley: I think, of course, abortion advocates would be upset if Roe v. Wade were overturned, but then that would return to the democratic process, where it should be. The fact of the matter is the Supreme Court has removed this issue from the democratic branches, where it should be.
And one other thing I should say about the Republican-appointed justices is that most of them consider themselves to be originalist and textualist. And there’s no question if you are an originalist or a textualist that the right result is to reverse Roe v. Wade and a follow-along case called Casey.
And the reason being is, as we’ve discussed, there’s no right to an abortion in the text, structure, or history of the Constitution. And for original justices, the buck stops there. Then there shouldn’t be a constitutional rule on this, it should be returned to the states where states are allowed to protect both unborn children and mothers.
Olohan: And what about Amy Coney Barrett? We know that she has a past history of making very pro-life comments in her personal life. Do you think that will reflect in this case?
Hawley: I don’t think Justice Barrett will allow her personal opinions who influence her judging, but I do think what will influence her judging, again, is her commitment to originalism and constitutionalism.
So again, it’s this idea that if there’s going to be a right to an abortion, you need to tether that somehow to constitutional text, structure, or history. And that just can’t be done here. So because of her committed views to constitutionalism and to originalism, I’m hopeful that she too will vote to overrule Roe.
Olohan: So what should we be on the watch for as this week progresses?
Hawley: I think the oral argument will be illuminating. It will be interesting to see what the justices’ questions are. And I think we’ll get a sense of what might be motivating them to vote one way or the other. Are the justices concerned about reliance interests that women might have, or on the other hand, are those reliance interests sort of offset by the availability of really affordable, really effective contraception that didn’t exist in 1973 and 1992? Are the justices really concerned that Roe has no basis in the Constitution? So I think we’ll get to see sort of where their heads are at a little bit.
Olohan: All right. Well, Erin, thank you so much. This has been a fascinating conversation and we’re really looking forward to seeing where things go with this.
Hawley: Absolutely. Thanks for having me.
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