Josh and Erin Hawley: 'A post-Roe America is a hopeful America'

The Hawley family played a key role in the recently overturned Roe v. Wade Supreme Court case. Though Missouri's junior senator, Josh Hawley, has been one of the strongest pro-life voices on Capitol Hill, it was his wife Erin Hawley whose legal work helped lay the groundwork in the landmark Dobbs v. Jackson case that ultimately sent abortion back to the states.

Recently, the Hawleys spoke with me about the court decision, Erin's role in the Dobbs case, and the future of the pro-life movement.

Raised by a ranching family in New Mexico, Erin Hawley said her core beliefs around the life issue were formed at an early age.

"We were in church every Sunday and learning from an early age just the value of life and that all of life is God-given and that every child is fearfully and wonderfully made and deserves protection and deserves life," she said about her formative years.

Erin would earn her undergraduate degree from Texas A&M before heading off to Yale Law School where she served on the Yale Law Journal. She and Josh met and eventually started dating while clerking at the Supreme Court for Chief Justice John Roberts. But in those years, the couple didn't talk about reversing Roe -- though they admitted it's long been a conservative dream.

"It's something that women and men and pro-life advocates have marched for and worked for decades. But before this year, it wasn't something that people thought was actually possible," she said "So I think if you would have talked to a lot of legal pundits, they would have thought Roe was here to stay. So it really is just an amazing time that we're living in."

A mom to three children with her husband Josh, Erin had been working part-time at home in recent years before joining Alliance Defending Freedom in February of last year. ADF played a key role in assisting the state of Mississippi, which brought the Dobbs case forward, and Erin Hawley was a central figure in the legal team.

With their daughter Abigail making noise in the background, appropriate for the topic at hand, Erin noted ADF has a strong record of protecting life and has won dozens of cases over the last decade at the Supreme Court.

"I've just been really involved in protecting the things we really care about," she said.

Because the Supreme Court has said the Constitution contains no right to an abortion, Erin Hawley said pro-life legislation will be subject to the same test that applies to other litigation -- "rational basis review," which is the standard courts apply when considering constitutional questions. Erin Hawley said this gives states a lot of authority.

"As Justice Alito pointed out, those things include protecting life at all stages of development. They include laws that protect the health of the mother, that protect the integrity of the medical profession or laws that would prohibit really gruesome abortion procedures," she said. "So states really are for the first time in 50 years fully empowered to protect life."

It will be interesting to see how states respond to the Dobbs decision and not only from a legislative perspective. Some previous state Supreme Courts have based abortion law on Roe. But what comes next now that Roe has been overturned?

Erin Hawley believes these court decisions are poised to be challenged.

"Florida is one of those states in which we have a state Supreme Court decision that has a state constitutional right to an abortion. But if you look at that decision, it's a 1989 decision, and the Florida Supreme Court relied almost exclusively on federal law and on Roe. So it will really be almost a question of first impression, something the court has not considered before when it comes back up to the Florida Supreme Court. And because Justice Alito's opinion is so thorough in debunking any federal basis for a Constitutional right to an abortion, I'm hopeful that a number of these other states will similarly follow suit. You can't invent rights under state constitutions, and hopefully these states will revisit those rulings."

Missouri Republican candidate Josh Hawley, far right, and his wife Erin Morrow Hawley shake hands with Dale and Helend Steffens, respectively, after a campaign rally Friday, Oct. 26, 2018, in Scott City.Southeast Missourian file

One of the arguments of opponents is that the Supreme Court abandoned precedent and stare decisis, the legal term for determining litigation based on precedent. The Supreme Court, according to Sen. Hawley, fully considered the principle of stare decisis in its analysis.

"This opinion went on for pages, analyzing all of the different stare decisis factors based on the court's previous decision," he said. "So, the court was very, very careful to give Roe bold stare decisis consideration, and what it found at the end of the day was that it didn't merit being upheld under the stare decisis factors, not least because it's totally and egregiously wrong. There's no basis for it in the Constitution, no basis for it in our history. And because of that, and because of the fact you have an unborn life here that is in the balance, the court has found that, 'Listen, stare decisis can't save this opinion.' So I think it was a very careful opinion. A very thorough opinion."

He added a political jab, saying the Left cheers when the court overrules issues they champion such as Second Amendment and free speech protections.

"They're all in favor of rewriting the Constitution. It's conservatives who say, 'Let's enforce the Constitution as it's written.' And that's what this petition does."

Erin Hawley added that she believes the court's decision was "judicially modest."

"It is democracy reinforcing because it returns the issue to the people and sort of gets the court out of the business of legislating national abortion policy," she said.

The senator expects the Left to continue to pursue extreme positions on this issue from imposing a federal law that would allow abortion on demand "right up through the last day of pregnancy if not beyond, if not allow effectively infanticide," he said.

Part two, he said, will be an effort to shut down the 3,000 pregnancy care centers in America that provide free medical care to women.

"They have really become far, far left radicals on this and their position just is not supported by most Americans," he said.

Erin added that pro-abortion crowd's effort to scare women will continue from a messaging standpoint.

"You have all of these groups and even senators and congressmen [and] women saying things like ectopic pregnancies are abortions and that women will be unable to get lifesaving medical treatment, and all of those things are simply false. As Planned Parenthood has recognized at least up until very recently, and an ectopic pregnancy is not an abortion, because there's no intent to take the life of the child. Obviously the same is true of a miscarriage as a tragic circumstance in which a child dies of natural causes, and every state that limits abortion provides an exception to save the life of a mother. And in such a circumstance, a physician is doing his level best or her level best to save both mother and child. So none of those situations involve abortion and it's just scare mongering for the Left to suggest that women's lives are endangered."

Sen. Hawley believes Democrats will continue attempts to expand the Supreme Court and come back to this issue, though he believes the issue will be difficult to reverse.

"I think if they ... reversed this decision, I think it would really decimate what remains of the credibility of the court, which frankly, is not all that much given how they've behaved in recent years. But I just think that this decision is a seminal decision. It gives new rights to the innocent unborn, and I think to take those rights away and to take the decision on these issues away from the people and to give it back to judges ... would be devastating."

Sen. Hawley introduced legislation earlier this month that would criminalize attempts to intimidate pregnancy resource centers and houses of worship following an increase in the number of physical attacks. But the senator also wants to see more funding for these centers.

"They ought to be able to get funding just like any other licensed medical care center. They ought to be able to get the same access to community health type programs that other care centers get. It's really important that we protect them, that we protect the women who go on to the centers. There's 3000 of them. There's far more pregnancy care centers than there are abortion clinics. And almost always the care is free."

Time will tell how this Supreme Court decision will play out politically. Sen. Hawley believes it has the potential to be transformative for conservatives and could reshape American politics. But first and foremost, he believes the Dobbs decision and overturning of Roe was Constitutionally the right decision. He referred to Roe as "historically unjust."

"It's right there with Dred Scott as one of the worst opinions the Supreme Court -- probably one of the two worst decisions the Supreme Court has ever handed down. Korematsu is also up there, which was the Japanese internment case which was just another awful, awful decision."

Erin Hawley said that while the overturning of Roe is a major victory for pro-life advocates, it's also a rallying cry for the future.

"States and individuals now have the ability and authority to fully protect life, and we need to come alongside women who face unexpected pregnancies and fully support them through pregnancy and beyond. We need to absolutely support pregnancy care centers that are so under assault. A post-Roe America is such a hopeful America, because it's one that values life."

Lucas Presson is assistant publisher of the Southeast Missourian.