Gorsuch Confirmation Hearings Highlight the Fact that Roe v. Wade is Unsettled Law

As I have attended and prayed through the first two days of confirmation hearings for Judge Neil Gorsuch, I have had a keen ear for all things discussed related to abortion. I think every Democrat on the Senate Judiciary Committee has brought up Roe v. Waderepeatedly as a means to incite fear about this man’s appointment to the high court, even though Judge Gorsuch has never ruled on a case directly affecting abortion.

In the first half of Tuesday’s proceedings, an important pro-life judicial matter emerged that is certain to lead the American public to grapple with abortion matters in a fresh and new way.

Senator Feinstein asserted that Roe v. Wade enjoys a “super precedent” status in the judicial system. Her meaning was that in the times abortion-related matters have been challenged, Roe has survived. Judge Gorsuch simply affirmed that Roe v. Wade is, in fact, still on the books. The question is whether Feinstein and other pro-abortion Senators are right. Is Roe so settled that it can never be questioned again? Is it beyond challenge at this point?

The answer is, “Absolutely NOT!”

This isn’t the first time this kind of jargon has made an appearance in Supreme Court nominee hearings. In the hearings of Justice Roberts (2005) and Justice Alito (2006), the term “super duper precedent” was invoked. Back then, Senator Specter used the term with Roberts as they discussed the Court’s future approach to Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. Roberts didn’t take the bait to affirm such an illustrious status to those cases. He deftly acknowledged that their current precedent would be the starting point. Any theory of precedent that suggests those cases are beyond revisiting is highly questionable.

The point of using such a term is to dupe the public and other courts into not touching a “sacred” decision for the left. Feinstein is misleading Americans by dragging out this language yet again and for suggesting that Roe is settled. Roe is anything but settled law. 44 years of repeated challenges prove that Roe isn’t settled or possesses any super duper status.

Science is exposing truths about life in the womb that is inconvenient to lawmakers bent on protecting Roe. As I sat there listening to Senator Feinstein make her overreaching assertions, I couldn’t help but think about how new information has emerged in recent years that has the potential to dismantle the flawed logic on which Roe was based. In fact, this new evidence is already emboldening lawmakers and eroding Roe at an increasing rate. Make no mistake—Roe sits on shifting sand.

A short time later in the hearing, Senator Graham highlighted this very issue when he informed Judge Gorsuch that he is currently making the case in the Senate for a “pain capable” abortion ban. This piece of legislation, introduced in the House on January 3 as the Pain Capable Unborn Child Protection Act (H.R. 36), is based on the scientific medical evidence that we now know babies in the womb feel the excruciating pain of dismemberment as early as 20-weeks of development. Many note that this ability exists even sooner.

The Pain Capable Unborn Child Protection Act was introduced in the House of Representative on January 3, 2017.

The Pain Capable Unborn Child Protection Act was introduced in the House of Representative on January 3, 2017.

Senator Graham mentioned the new legislation and let Judge Gorsuch know that it will likely be coming before the Supreme Court in the future—presumably a court he would be seated on—when legal challenge is brought against it by pro-abortion antagonists.

The point is that abortion is anything but a settled issue in American society and culture. Roe rests on a viability argument that modern science is increasingly challenging. That’s why abortion activists work so hard to deny women information about life in the womb—science is against them.

Graham hypothetically pondered: what if in the future medical practice is able to sustain life outside the womb at an even earlier stage of development. Does new medical science affect the logic which Roe is built on?

The answer is, “Absolutely YES!”


Attorney Allan Parker clarifies this important perspective saying:

“Judge Gorsuch gracefully and accurately stated that a decided case of the Supreme Court should be given deference and is binding precedent until it is overturned by the Supreme Court under the doctrine of stare decisis.  But all opinions of the Supreme Court are subject to review and correction even under the doctrine of stare decisis.

When a case is no longer just, when facts and circumstances have changed to make the rule of the case unworkable, when a wrong decision has not been accepted by the American people, the case should be overruled. These are just a few of the reasons the Court uses for overturning their decisions.

The Supreme Court has overruled its own decisions on constitutional grounds over 200 times already. If the Court did not—or could not—then we would still have segregated “separate but equal” public schools because Plessy v. Ferguson was the ‘law of the land’ for 58 years until Brown v. Board of Education overruled it.”

The Pain Capable Unborn Child Protection Act is a key focus of prayer for Bound4LIFE. Please join with us by contending in prayer for the passage of this impactful piece of legislation that is supported by an overwhelming majority of Americans.

Read more about the unique way God led Bound4LIFE to pray for Judge Neil Gorsuch.

About Matt Lockett


As a full-time missionary, Matt Lockett serves as Executive Director of Bound4LIFE International and Justice House of Prayer DC. He travels and teaches on the subjects of prayer, fasting and governmental intercession—topics covered in his new book Prayer that Impacts the World. Matt and his wife Kim have four children. They live and minister in the Washington, DC area.