Bench Memos

Law & the Courts

National Right to Life’s Atrocious Brief in Dobbs Abortion Case

As an admirer and supporter of the organization that the National Right to Life Committee once was, I am appalled to see the feeble amicus brief that it filed in Dobbs v. Jackson Women’s Health Organization, the big abortion case to be decided by the Supreme Court next term.

For the first time in three decades, the Court has a compelling opportunity to overturn Roe v. Wade and Planned Parenthood v. Casey and to restore the power of the states to restrict abortion. To its credit, the state of Mississippi has filed an excellent merits brief calling for Roe and Casey to be overruled.

What does National Right to Life, whose stated mission is “to protect and defend the most fundamental right of humankind, the right to life of every innocent human being from the beginning of life to natural death,” do with this opportunity? It submits an amicus brief that, rather than calling for Roe and Casey to be overruled, invites the Court to create a “new roadmap” that will only “begin to reverse the anomalies on which Roe’s tangent from normal legal norms was built.” The saving grace of National Right to Life’s “new roadmap” is that it is so incomprehensible that no one could endorse it.

National Right to Life doesn’t even call for the Court to rule in favor of the constitutionality of the Mississippi law at issue in Dobbs, which allows abortions after 15 weeks of gestational age only in medical emergencies or in instances of severe fetal abnormality. Instead, it recommends that the Court remand the case to the Fifth Circuit “to apply this Court’s new roadmap.” Beyond the fact that the composition of the Fifth Circuit panel to which the case would ordinarily be remanded is not a favorable one, what possible helpful guidance does National Right to Life imagine that its proposed roadmap would provide?

National Right to Life seems happy to have the Court’s usurpation of the states’ authority to protect the unborn continue for decades. Amazingly, it even asserts that the “decision on whether to reach the end of the road” on its roadmap—i.e., “to restore to the States and to the People the power to protect unborn life throughout pregnancy”—“will likely rest with future Courts.” But there is no reason to think that there will ever be a future Court better positioned to inter Roe and Casey than the current Court is.

National Right to Life no longer plays a leading role in the pro-life world. Its terrible brief should not mislead anyone into thinking that the timid and incoherent approach that it advocates is acceptable.

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