Catholic Democrats who wear their religion on their sleeve have been responsible for sustaining unfettered abortion

Nothing could be further from the truth. Certainly the pro-life community would cheer a ruling in Dobbs v. Jackson Women’s Health Organization upholding the Mississippi law. Pro-lifers would also welcome the encouragement that would give other states to pass similar laws.

But the real issue in Dobbs isn’t abortion bans. It’s whether the court will allow a democratic politics of abortion or continue to force one side of the abortion argument—the pro-life side—to play by rules stacked against it and the Constitution.

This is the status quo, the result of what the Supreme Court wrought in both Roe and its progeny, Planned Parenthood v. Casey (1992). In each case, a handful of unelected justices took abortion out of the hands of the American people and instead imposed their own morality on the entire country. In so doing, far from settling the issue, the Supreme Court only nationalized and inflamed the passions that abortion arouses on all sides. In Monday’s Washington Post, Mississippi Attorney General Lynn Fitch put it this way: “In Roe, the court turned actual policymaking in state legislatures into an almost academic exercise.”

Roe has always been an awful decision, a truth long acknowledged even by many who are pro-choice. This was acknowledged too by the three-justice plurality in Casey, when they invoked a Rube Goldberg version of stare decisis to gut the reasoning behind Roe while preserving the outcome. Casey’s contribution was the equally arbitrary “undue burden” standard, whose meaning no one can explain to this day.

The question now is whether, after two incoherent Supreme Court rulings, the justices will stick America with a third out of fear that admitting the constitutional truth about Roe and Casey would damage the court’s legitimacy. Pity no one seems to ask about the harm these same justices will inflict on the Court if they don’t have the integrity to acknowledge what they all know, which is that Roe and Casey were very badly decided.

Now pro-lifers have a Supreme Court that may be as good as it gets when it comes to upholding fundamental constitutional principles. If the justices shy away from doing the right thing here, even with the security of their lifetime appointments, a large segment of the American people will conclude that our legal system has been designed to ensure they can never win. Many will become cynical, having concluded that if you play by the rules you will lose to those who don’t. It would be difficult to tell them they are wrong.

Pro-lifers aren’t asking the Supreme Court to outlaw abortion. They understand that in a democratic society, this isn’t the court’s job but the people’s—which they can do only by persuading their fellow citizens of the rightness of their cause. In contrast, the way the pro-choice side gets vapors whenever its adherents believe Roe is at stake suggests they know full well how brittle a holding it is. It also underscores how little they trust their fellow Americans to make these decisions themselves.

If Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett wish to know what pro-lifers expect in return for the support they’ve given them, they will find it nicely summed up in Antonin Scalia’s 2013 dissent in U.S. v. Windsor. There the issue was the Defense of Marriage Act, but the constitutional principle at stake was the same.

“The Court,” Scalia wrote, “has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”

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