On Wednesday, Dec. 1, the United States Supreme Court heard arguments in the Dobbs v. Jackson Women’s Health case. In 2018, Mississippi passed the Gestational Age Act that bans all abortions after 15 weeks of pregnancy. Abortion advocates immediately filed suit to prevent the Act from becoming law. After working its way through the lower courts, the Supreme Court reviewed the case on May 17, 2021. However, the Court limited the case to the single question, “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” The decision of the Court is not expected until late June of this year.

On Dec. 9, Tony Beam, director of the South Carolina Baptist Convention’s Office of Public Policy, spoke to South Carolina Attorney General Alan Wilson about the case. Here is that interview:

Question: Mr. Attorney General, can you tell us a little about the background of the Dobbs v. Jackson Women’s Health case?

ATTORNEY GENERAL: When you look at the history of the jurisprudence of abortion law in this country, it was really born out of a case not related to abortion. When you go back and you look at Griswold v. Connecticut in the 1960s, which was about contraception between married couples, you see there were numerous cases that followed — which created a privacy right that was not otherwise found in the U.S. Constitution. In Roe v. Wade, the Court basically nailed it down to a trimester system that prohibited abortion in the third trimester based on the privacy right interest of the mother.

In the early 1990s, we have Planned Parenthood v. Casey, which flipped the standard from a trimester system to a viability system, with viability being established somewhere around 22 to 24 weeks of pregnancy. Before 22 to 24 weeks, limiting abortion was based on whether or not the limitation caused an undue burden on the mother. That has been the standard for the last 30 years governing what the states can and cannot do concerning abortion. The Mississippi law moves the line of viability back to 15 weeks.

Question: What would it mean for the states if the Supreme Court decides to respond to the Dobbs case by overturning Roe v. Wade?

ATTORNEY GENERAL: A lot of people think overturning Roe somehow makes abortion illegal in every state. That isn’t the case. There are a number of states that have trigger mechanisms and laws in place that would curb or restrict abortion, or outlaw it if Roe were to be overturned. However, there are a number of states that have not chosen to do that. Abortion was legal in California and New York long before the Roe decision was issued. If the Supreme Court were to throw out Roe. v. Wade, it would return the issue to the status quo where the issue would be up to the individual states.

Question: Considering the arguments that were made, the questions that were raised, and the attitude of the Justices, could you predict what the Court is likely to do?

ATTORNEY GENERAL: I don’t know what the Court is going to do. They might uphold portions of the Mississippi law without throwing Roe v. Wade out. I just can’t predict what the Court is going to do. In talking to legal scholars about the hearing, a number of them seem to think the Court will uphold the Mississippi law under the undue burden standard. I haven’t heard anyone say they think Roe will be completely thrown out — but, again, the people I talk to are very cautious when it comes to trying to predict what the Court will do based on the oral arguments.

Question: How much influence do you think Roberts will have on the direction of this decision? He has a lot of influence as Chief Justice, and most observers consider him to be minimalist, someone who prefers incremental moves over sweeping change.

ATTORNEY GENERAL: There is no question Justice Roberts likes preserving the appearance of the Court. He places a lot of emphasis on stare decisis (determining points of litigation according to precedent). My gut tells me Roberts will take a minimalist view, which could leave the decision to overturn Roe up to the five more conservative justices.

Question: In 2021, South Carolina passed the Heartbeat Bill that outlaws abortions after a heartbeat is detected, which is usually around six weeks of pregnancy. Would Roe have to be overturned for the Heartbeat Bill to become law? Or would a substantive change based on the Dobbs decision be enough to allow the Heartbeat Bill to become law in South Carolina?

ATTORNEY GENERAL: It depends on how the Court reinterprets the undue burden standard and the viability standard. Roe was augmented by Casey in the early 1990s. You can envision a scenario where the Court allows the Mississippi law to stand, and they allow the viability question to be determined by the states, where viability could be reduced to six weeks. I’m not saying that is what I support, but I am saying I could see the Court ruling that way.

Question: What do you think the cultural implications of this decision will be? Do you see the country becoming more divided no matter which way the Court rules concerning Dobbs?

ATTORNEY GENERAL: Yes. Abortion has always been one of those bright-line tests. People running for coroner, or sheriff, or comptroller, or whatever office that has nothing to with abortion, will assert that they are pro-life, even though the job they are running for will never have anything to do with abortion. Being pro-life is a core issue for many Americans. I do think whatever the Court does that is short of being perceived as a 100 percent win for either side will create more division. But that doesn’t mean we shouldn’t revisit this question. When you look at this country compared to other countries, we are one of the more liberal countries on abortion law.

Question: When you personally talk to people about abortion, how do you share what you believe about this issue?

ATTORNEY GENERAL: I like to talk to people and tell them where my views come from on being pro-life. I try never to use religion as the reason for being pro-life, because if someone doesn’t believe in God or share my faith or have any faith close to what I have, you are arguing from an authority that the person you are talking to may not recognize as an authority. What I do try to do is say, look, this country was founded on ideals. The people who wrote the Constitution — for example, Thomas Jefferson, who wrote the Declaration of Independence — studied the classics and many of the Enlightenment thinkers. John Locke was probably one of the most influential Enlightenment thinkers who influenced the thinking of the founders of the Constitution of this country. Locke’s thinking was along the lines of natural law — whether it was God-given rights or God-given law or natural law, our rights come from nature and nature’s God. These are rights we possess that the government doesn’t give us.

The very first of these rights is the right to life, followed by the right to liberty and the right to property or the pursuit of happiness. Once you recognize those rights preexist government, the purpose of government should be to secure those rights. People on the left tend to think that government exists to give you privileges and entitlements. But government, in my opinion, exists to secure natural rights — and the first of those rights is the right to life.

Once you realize these rights come from God or nature — even if you are an atheist, you can acknowledge there are natural rights — then you have to ask if someone has a right to life, when does that right attach? When do you assign moral value to an unborn child? Does the moral value change due to external circumstances? I believe there is only one hard line where you can assign moral value, and that is when a child has a different genetic code from that of the parent — and that is at the moment of conception. So, for me, it is a scientific authority and a natural law authority, meaning I assign moral value at the only place where it cannot be moved — and that is at the moment of conception.