BY CHRIS QUEEN | P J MEDIA
AP Photo/Jose Luis Magana
It seems like both an understatement and overkill to call Wednesday a historic
day, as the Supreme Court heard the oral arguments in Dobbs v. Jackson Women’s
Health Organization, a case that could become a pivotal moment in the abortion
debate.
The Court could overturn Roe v. Wade and return abortion policy to the
individual states, and as I wrote yesterday, it could change the nature of the
abortion debate altogether.
Oral arguments wrapped at lunchtime, but there’s so much that happened. It’s
hard sometimes for laypeople to wade through the legalese, but I’ve done the
hard work for you, dear reader. Here are 10 things you need to know about
today’s oral arguments in Dobbs.
1. Left-leaning justices argue that upholding Roe and Casey preserves the
status quo.
One of the key legal concepts at play in this case is stare decisis, or
adherence to precedent. On his radio show today, Erick Erickson said that stare
decisis means that you don’t just upend Supreme Court precedent for no reason.
Don’t forget: it took over half a century to overturn Plessy v. Ferguson, as
bad a decision as that one was.
Ed Whelan wrote at National Review that Chief Justice John Roberts made several
arguments regarding stare decisis in Citizens United v. FEC in 2010 that point
toward overturning Roe and Casey.
Multiple questions and comments from justices revolved around stare decisis.
Precedent is always important in Supreme Court cases, but it seemed to rear its
head often today. Justice Stephen Breyer tried to point out that it would
“subvert the Court’s legitimacy” (a quote from Casey) to overturn Roe; he also
argued that the Court should have the “most compelling reason” to overturn Roe
and Casey. In response to Breyer, Mississippi Solicitor General Scott Stewart
retorted that Casey wasn’t a great example of letting precedent stand.
Dan McLaughlin pointed out in National Review‘s liveblog that both Breyer
and Justice Sonia Sotomayor didn’t make any new arguments for upholding Roe and
Casey on stare decisis. “What I am not hearing at all from Breyer or
Sotomayor is any argument that would not have been equally applicable in
defending Plessy v. Ferguson,” he noted.
2. Alito took an opposite tack, comparing Roe and Casey to Plessy.
Justice Samuel Alito made the opposite argument over stare decisis when he
compared Roe and Casey to the bad precedent in Plessy, which was eventually
overturned.
“Justice Alito effectively established that a ruling’s egregious wrongness can
suffice (or at least go very, very far) to justify its overruling,” Ed Whelan
observed.
3. Roberts searched for a middle ground between upholding the Mississippi law
and overturning Roe and Casey.
Chief Justice John Roberts, whose wife has served as a pro bono counsel for a
pro-life organization, seemed to search for a way to uphold the Mississippi law
without creating earth-shattering precedent.
Ed Whelan writes:
The Chief seemed to be searching for a middle ground that would enable him to
vote in favor of the Mississippi 15-week ban without overturning—or at least
without declaring the overturning of—Roe and Casey. If I understood him
correctly, he advanced the position that the viability line, which Casey
repeatedly declared to be the “central holding” of Roe, was mere dictum (i.e.,
not part of the actual holding) in both cases.
Whelan also noted that such a middle ground may not be possible and that he
hopes Roberts will see that and rule in a way that overturns Roe and Casey.
4. Barrett brought up “safe-haven” laws to argue that abortion isn’t
essential.
The Court’s newest justice, Amy Coney Barrett, asked Center for Reproductive Rights
attorney Julie Rikelman about “safe haven” laws, which allow women who want to
give up their newborns to drop them off in certain places like medical
facilities, where the child will be taken care of and the mother would not face
prosecution.
Naturally, the ogres at the Daily Beast painted Barrett as an advocate for
“forced pregnancy,” but Alexandra DeSanctis points out how untrue that
characterization is:
Barrett’s question was designed not to advocate adoption as an abortion
alternative but rather to force Prelogar to get to the heart of what principle
makes the right to abortion so essential. She was asking, in other words,
whether the supposed burden of parenthood is diminished by safe-haven laws. If
the aim of abortion supporters is to enable women to choose not to be a parent,
why are safe haven laws not good enough? Why must the government also sanction
abortion?
Prelogar’s response was, in effect, that both continuing pregnancy and giving
up a child for adoption still put too much of a burden on women, and thus
abortion needs to remain an option in order for women to have a real choice and
real freedom. The right to abortion, in other words, is essential not so that
women don’t have to parent or can end pregnancy (which can be done without aborting
the child) but so that they can affirmatively do away with an unwanted child.
5. Abortion advocates removed any emotional components to pregnancy in their
arguments.
DeSanctis also made an interesting observation in the National Review liveblog
about how the pro-abortion attorneys arguing against the Mississippi law
characterized pregnancy.
Defenders of abortion, including the two attorneys arguing against
Mississippi’s law, speak about pregnancy a) as if it simply “happens” to women
spontaneously without their knowledge or consent and b) as if it were an
aggressive form of cancer.
Any woman who has had children knows that pregnancy isn’t merely clinical, nor
is the woman merely an inactive participant. But that’s how abortion advocates
have to characterize pregnancy in order to advocate so forcefully for wantonly
snuffing out a new life.
6. Stewart divorced the pro-life movement from a particular religious or
philosophical worldview.
Ed Whelan pointed out an assertion that Justice Sonia Sotomayor made:
I think that she said at one point that only a religious belief could lead you
to think that the Constitution doesn’t protect abortion. Even if she said or
meant that only a religious belief could lead you to oppose abortion, her
assertion is absurd.
Right or wrong, people tend to tie the pro-life movement to Christianity or
other religious worldviews. But there are those who hold pro-life views for
purely secular reasons.
When Justice Alito — a noted Catholic — asked whether a pro-life position is
married to a religious mindset, Stewart had a ready reply.
“It’s not tied to a religious view,” he stated, noting that secular scientists
also hold a myriad of views on when life begins.
That’s important because it proves that the pro-life movement is more than just
a niche religious crusade.
7. Thomas tried to clarify where the right to abortion occurs in the
Constitution.
We’ve heard for years that a right to abortion is somewhere in the
Constitution. Justice Clarence Thomas pointedly asked where that right lives
when he said, “I understand we’re talking about abortion here. But what is
confusing is that if we were talking about the Second Amendment, I know exactly
what we’re talking about. If we’re talking about the Fourth Amendment, I know
what we’re talking about. Because it’s written in there. What specifically is
the right here that we’re talking about?”
U.S. Solicitor General Elizabeth Prelogar responded by saying that, well,
basically, it’s everywhere — or something:
Well, Justice Thomas, I think that the court in those other contexts, with
respect to those other amendments, has had to articulate what the text means
and the bounds of the Constitutional guarantees. And it has done so through a
variety of different tests that implement First Amendment rights, Second
Amendment rights, and Fourth Amendment rights.
I don’t think there is anything unprecedented or anomalous about the right that
the court articulated in Roe and Casey, and the way it implemented that right
by defining the scope of the liberty interest by reference to viability and
providing that’s the moment when the balance of interest tips and when the
state can act to prohibit a woman from getting an abortion, based on its
interest in protecting fetal life.
8. Sotomayor came across as callous.
Justice Sotomayor made some awful comments in the discussion when she compared
unborn babies to dead people.
She argued that the notion of fetal pain is “not founded in science at all” — a
claim which has been debunked.
Sotomayor compared fetal pain to involuntary spasms in brain dead people,
specifically talking about dead people whose feet have moved.
Alexandra DeSanctis hit the nail on the head when she said, “It says a lot
about Roe that one of its defenders on the Court is defending the decision by
comparing an unborn child to a dead body.”
“Wise Latina,” my ass. Sotomayor came across as just callous and gross.
9. The Biden administration doubled down on the assertion that abortion is
“fundamental.”
Prelogar represented the Biden administration in arguing against the
Mississippi law, and she made a telling statement. She said that the Supreme
Court “has never revoked a right that is so fundamental.”
As the representative of the Biden administration in this case, Prelogar has
doubled down in favor of abortion. This is not simply a pro-choice argument.
This is strictly pro-abortion.
Prelogar is proof positive that, for all of the arguments during the 2020
presidential campaign that Joe Biden was a moderate, his administration is
planted firmly on the far left.
10. We should expect a ruling in late June.
Don’t expect a ruling to come before Christmas; in fact, don’t expect anything
before next summer. It’s not going to be quick, and it may even be the last
decision the Court issues this term.
Dan McLaughlin noted in the National Review liveblog at the beginning of the
day:
The Court’s term is likely to end the week of June 27-July 1, 2022, and unless
the Court suddenly hits on some simpler resolution of this case, I would wager
on Dobbs being handed down the last day of the term, probably June 28 or 29.
After arguments, he wrote:
My takeaway: we were never going to get the satisfaction today of feeling that
the outcome was in the bag. No big case ever delivers that at argument. Now, we
wait until late June, and of course, we hope nothing happens to the Justices in
the interim. But it is hard to see how pro-lifers could be more optimistic
about how this argument went.
So be patient, folks. It’s going to take some time.
But you know what? We’ll be here, ready to cover the decision and its fallout
as soon as we hear something.
If you’re inclined to, I urge you to pray for the proper decision from the Court
— one that demolishes Roe and Casey and protects the unborn.
