The U.S. Supreme Court will overturn its Roe v. Wade decision later this year, predicted a speaker hosted by the Federalist Society on March 3.
Professor Sherif Girgis of the University of Notre Dame Law School said the overturning of the landmark case would allow the states to make their own laws on abortion.
“It’s a great thing to be in college when history strikes,” Girgis said. “And I think you will have been in college at a moment of world-historical significance, because I am very confident that the court this year is going to overturn Roe v. Wade and Planned Parenthood v. Casey and send the issue back to the states.”
Girgis is a family friend of senior Leo Schlueter, who invited him to speak.
“I’ve known Girgis for a long time,” Schlueter said. “He’s very close with my uncle, they went to undergrad together, and so he was sort of a family fixture who I would see at Thanksgiving and such.”
Schlueter said he wanted Girgis to come speak at Hillsdale because of his great philosophical knowledge and his connection to many at Hillsdale.
“Sherif has done some incredible work in the field of natural law in the public policy sphere, writing papers on topics ranging from political philosophy to marriage,” Schlueter said. “ He has a lot of great intellectual clout which supplements the things we learn in class here very well, I think.”
Freshman Anna Tencza said she enjoyed the talk.
“It will be interesting to see what happens in June,” Tencza said.
Girgis defended his claim regarding the abortion decision by explaining that the Supreme Court has virtually no other option besides redirecting the decision to the states. He explained the history of both previous cases, Roe and Casey, and the most recent abortion case, Dobbs v. Jackson Women’s Health. Dobbs considers the legality of Mississippi’s 15-week abortion. Both Roe and Casey rest on the 14th Amendment, but lack support for this new case, Girgis said.
“My main reason for thinking that there’s no way that the court will do anything to overturn those cases is that there’s no legal support for a middle ground,” he said.
Girgis said the use of the 14th Amendment for Roe and Casey is not valid and the court knows that.
“Roe, Casey, and Dobbs are supposed to be interpreting the 14th amendment,” Girgis said, “and the 14th amendment doesn’t say anything explicit about abortion.”
Girgis outlined the three possible answers for “middle ground” and rejected all of them as weak. He said the court could appeal to text, history, or precedent. Girgis said the text fails because the 14th amendment says nothing concerning abortion and no other documents support this claim to a right.
He said Roe already tried and failed to appeal to history.
“The problem with that is that Roe’s history was bad history,” Girgis said. “And it was effectively debunked over and over in the years following Roe.”
Girgis said Roe and Casey both provided the right to abortion up to viability, the age when a baby can survive outside the womb. Girgis said this meant that both Roe and Casey opposed the Dobbs case.
“Roe and Casey clearly condemn Mississippi’s law, which bans abortion for 15 weeks,” Girgis said, “so you cannot claim precedent either.”
Girgis said the Supreme Court wants to avoid making a new claim or law because they have little to no support for it.
“They want to be able to say, ‘my hands are tied. The law made me do it,’” Girgis said.
In the Q&A section, Girgis explained more about the details of the Dobbs case and the oral arguments heard before the court this past fall. He said Dobbs argued upon the same bases as Roe and Casey.
“Roe and Casey both have the same bottom-line argument for a right to an abortion,” Girgis said. “It says interest in fetal life is not weighty enough to override a woman’s interest in aborting until viability.”
Girgis said in the oral arguments before the Supreme Court, Associate Justice of the Supreme Court Amy Coney Barrett questioned the burden of parenthood as a legitimate reason because of the accessibility of quick adoption in all 50 states.
“It is very hard to find a basis for this right at all,” Girgis said. “And it’s because the right is made up because there’s nothing in the Constitution that tells you that the right exists.”
Girgis concluded saying the Supreme Court would grant this issue to the states, which would not criminalize abortion, but would allow each state to regulate the decision alone.
“That’s why I am quite certain that in the next five months, the court will overturn Roe and Casey and send this issue back to the states for the first time in 50 years,” Girgis said. “It’ll completely transform our politics and our understanding of constitutional law and the relationship with the courts.”
Schlueter said he appreciated Girgis’ optimism and perspective of the court, which is different today than in the 70s and 90s.
“I think Sherif’s analysis of the makeup of the court that we have right now was very intriguing, specifically his point that we have a group of justices much less willing to intellectually compromise on issues like abortion than we have had in a long time,” Schlueter said. “It is easy to be cynical about the supreme court, but Sherif was surprisingly optimistic.”
Freshman Sarah McKeown said she was also impressed by his analysis of the court.
“Professor Girgis’ knowledge of the justices was especially insightful when remarking on his predictions for future decisions,” McKeown said. “It certainly left the audience with much to consider.”
Schlueter said he is unsure what the court will do, but sees Girgis’ answer as highly probable.
“I think he makes a very persuasive case,” Schlueter said. “And he is in a good position to make the kinds of claims he does about the sort of decision processes the court is likely to deploy.”
McKeown said she appreciated hearing from Girgis on this topic.
“I am constantly amazed by the accomplished speakers that come to campus to speak with, and educate, students,” McKeown said. “It is such a wonderful opportunity to learn from such knowledgeable and experienced people, and it is a part of what makes Hillsdale so special.”
