The Sixth Circuit’s en banc ruling on Tuesday (in Pre-Term Cleveland v. McCloud) on Ohio’s law on Down syndrome abortions is a stark reminder of the obvious reality that litigation over abortion regulations isn’t going to disappear. Thirty years ago, in his dissent in Planned Parenthood v. Casey, Justice Scalia powerfully warned that the Supreme Court’s perpetuation of its “imposition of a rigid national rule”—via its lawless power grab in Roe v. Wade—“merely prolongs and intensifies the anguish” that the majority in that case ludicrously thought it was bringing to an end. As he put it, “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”
For the reasons I outlined here, I continue to believe that the state of Mississippi’s pending certiorari petition in Dobbs v. Jackson Women’s Health Organization provides the best opportunity this Court will ever have to overturn Roe. It’s long past time for the Court to recognize—and act on—Scalia’s constitutional wisdom.
If the Court somehow ends up failing to grant certiorari in Dobbs, there will justifiably be staggering disappointment with any conservative justices who failed to provide the needed votes.