Oswald Clark and Paul Tuns
Analysis
“Roe versus Wade and Planned Parenthood versus Casey haunt our country.” So began testimony of Mississippi Solicitor General Scott Stewart’s oral arguments in Dobbs v. Jackson Women’s Health Organization before the Supreme Court as the nine justices questioned three lawyers in a case that could overturn the 49-year-old precedent that created the right to abortion in the United States.
Dobbs is a challenge to 2018 Mississippi law that bans abortions after 15-weeks gestation. It is the most direct challenge to the country’s two most important abortion cases, Roe and Casey.
Roe, a January 1973 7-2 decision created the right to abortion. Justice Harry Blackmun acknowledged that there was no right to abortion enumerated in the U.S. Constitution but claimed a right to privacy could be found in the Due Process Clause of the 14th Amendment. While the majority opinion called abortion a “fundamental” right, it attempted to balance the right of states to regulate abortion with women’s access to the lethal procedure and imposed a trimester approach. During the first trimester states could not prohibit abortions, during the second trimester state governments could require reasonable health regulations, and in the third trimester abortions could be prohibited as long as there were exceptions to save the life or health of the mother. Washington Post columnist George F. Will noted sardonically that lucky for the Supreme Court the duration of a pregnancy was divisible by three.
Justice Byron White wrote in his dissent that “for the most part,” abortion “should be left with the people and the political processes the people have devised to govern their affairs.” Justice William Rehnquist took issue with the majority’s use of the Due Process Clause.
Legal scholars have criticized Roe as raw judicial activism and bad law. John Hart Ely, a pro-abortion legal scholar, wrote in the Yale Law Journal at the time, Roe was a “very bad decision” and was “not constitutional and gives almost no sense of an obligation to try to be.” Thirty years after the decision, another pro-abortion legal scholar, Kermit Roosevelt, wrote, “as constitutional argument, Roe is barely coherent,” charging the majority with creating a right to abortion “from the constitutional ether.” A more political explanation is offered by Albert Mohler, former president of the Southern Baptist Theological Seminary, who recently wrote in World magazine, “Arrogating power to itself, the Court simply invented a woman’s ‘right’ to abortion, driven by feminist demands that, in order to be equal, women must be able to be as unpregnant as men.”
Judge Robert Bork would criticize the “penumbra” argument – that the right to privacy stems from due process – saying that judges must adhere closely to what the Constitution does say and not read into it as a living document.
Bork’s “originalist” view of jurisprudence became the dominant goal of the conservative movement in the United States, and Republican presidents from Ronald Reagan onward were expected to appoint justices to the Supreme Court who would tack closely to the rights enumerated within the Constitution and Bill of Rights. Justice Antonin Scalia became the foremost practitioner on the bench of this legal philosophy.
In 1992, the Court heard a challenge to the Pennsylvania Abortion Control Act of 1982, which created a waiting period for abortions, spousal notice, and parental consent for minors. Planned Parenthood of Southeastern Pennsylvania sued the pro-life Democratic governor of the state, Robert Casey. The 5-4 majority in Casey upheld the essential holding of Roe that abortion was protected under the Due Process Clause, but replaced the trimester approach to regulation with a viability approach, ruling that states cannot regulate abortion prior to viability, which is around 24 weeks. Justice Anthony Kennedy – whom Reagan appointed to the bench when Justice Robert Bork’s nomination was defeated in the Senate – wrote the majority decision. He wrote, “if the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters fundamentally affecting a person as the decision whether to bear or beget a child.” (Justice Scalia sardonically called this the “sweet-mystery-of-life-passage” of the decision.) The majority also presumed to declare the abortion issue “resolved” and called upon pro-life and pro-abortion Americans “to end their national division by accepting a common mandate rooted in the Constitution.”
A Heritage Foundation legal memorandum written by Sarah Parshall Perry and Thomas Jipping recently noted that “The Court may have made that call, but neither side of the controversy appeared to be listening.” Since 1973, the Court has decided on more than two dozen cases on abortion, Perry and Jipping write, with nearly 90 majority and separate opinions, “with the average number of opinions per case higher after Casey claimed to have ended the national division” than before.
And far from being “settled,” the politics of Roe has loomed large over presidential and senate elections for more than three decades, especially over the past 10 years. In 2016, when Justice Antonin Scalia died, Senate Majority Leader Mitch McConnell (Republican) prevented a vote on President Barack Obama’s Supreme Court nominee and the issue of Supreme Court politics – which was largely viewed as a battle over the right to abortion despite arguments about originalist judicial philosophies – that helped elect Donald Trump president. Trump appointed three justices to the top court and all three give at least lip service to originalism and all three have a history of deciding in favour of life as judges on lower courts.
All that is context to Dobbs, the current and most serious challenge to Roe. Three Democratic appointees – Stephen Breyer, Elena Kagan, and Sonya Sotomayor – support Roe and Casey. Justices Clarence Thomas and Samuel Alito are on record opposing Roe. Abortion law will be decided by Justices John Roberts, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. All three have ruled in favour of abortion restrictions, but it is unclear whether they will overturn Roe and leave the issue fully to the discretion of the states; overturn Roe and rule the U.S. Constitution protects the preborn; set aside Casey’s viability standard yet uphold Roe in some fashion; or, uphold Roe and Casey. The first three would allow the Mississippi law to stand, while upholding the Supreme Court precedents would strike it down.
Oral arguments were made on Dec. 1, during which the justices made statements and asked questions of Mississippi Solicitor General Scott Stewart, Jackson Women’s Health Organization lawyer Julie Rikelman, and (representing the Biden administration) U.S. Solicitor General Elizabeth Prelogar. Sometimes those questions indicate the direction a justice might rule, but sometimes they are just asking questions.
The case that the 14th Amendment should be applied to protect preborn children and rule that abortion is unconstitutional – most poignantly stated by law professors John Finnis and Robert George, among others — was not broached by any lawyer nor justice and therefore the possibility of reversing Roe and nationalizing protection of the preborn is almost certainly off the table. In rather narrow technical terms, Mississippi is asking for Roe to be overturned to allow states to regulate or ban abortion as they see fit, and not that the Court find abortion itself to be constitutionally invalid.
A search of the oral proceedings suggests the issues on which the case will indeed be decided. The words “mother” and “motherhood” were mentioned three times and “personhood” was spoken a grand total of twice. Yet stare decisis – the legal term that the Supreme Court should uphold their legal precedents in all but extraordinary cases – was mentioned almost 50 times. While stare decisis is a good principle – it ensures continuity in the law by binding different makeups of the court to previous decisions – it is not a hard-and-fast rule. Indeed, as the Heritage Foundation has pointed out, the Court has reversed its prior precedents on 233 previous occasions.
Stewart said there are precedents so egregious they should not be allowed to stand, and Roe is among them. Both pro-abortion lawyers argued that the Court must respect its previous decisions. Both Samuel Alito and Brett Kavanaugh challenged the argument, asking whether the court must uphold obviously erroneous and egregious decisions, with Kavanaugh reciting a list of Supreme Court precedents that were later overturned. Kavanaugh said some of these cases are “the most consequential and important cases in the Court’s history” – the most famous being Brown v. Board of Education, that, after 58 years, overturned the 1896 Plessy v. Ferguson decision that enshrined the odious separate-but-equal laws that treated black Americans as second-class citizens. Alito got Prelogar to admit that the Court was correct in overturning Plessy, in effect conceding that there is precedent to overturn precedent.
Ed Whelan of the Ethics and Public Policy Center said that Alito, Coney Barrett, Gorsuch, Kavanaugh, and Thomas indicated a willingness to overturn Roe and Casey, while Roberts was seeking a middle ground to uphold both the Mississippi law and Roe.
Clarence Thomas asked Rikelman and Prelogar about the basis of the right to abortion if it is not expressly recognized by the Constitution. Both talked about the right to privacy and liberty interest, which Thomas suggested were arguments to concoct a right that did not exist. Kavanaugh noted that the Constitution is “silent” and therefore “neutral” on abortion, suggesting he does not think the Supreme Court should be arbitrating the abortion issue: “Why should this Court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this.”
Amy Coney Barrett, a mother of seven, took issue with Rikelman’s and Prelogar’s argument that abortion was necessary to compete with men in the workplace and that women facing an unwanted pregnancy have no choice but to kill their preborn children. Prelogar argued abortion was a “fundamental right” for women “central” to “participate fully and equally in society.” Coney Barrett, who adopted two children, asked about adoption or safe haven laws.
Several justices questioned the three lawyers about viability being a meaningful demarcation for a state’s interest in regulating or prohibiting abortion. Kavanaugh pointedly said to Prelogar, who asserted the viability standard balances the interest of the mother and child (although she did not use that word)” “You can’t accommodate both interests. You have to pick. That’s the fundamental problem.” Samuel Alito poignantly stated the problem with the viability, or any other arbitrary point to cut-off prohibiting or restricting abortion: “The fetus has an interest in having a life, and that doesn’t change, does it, from the point before viability to the point after viability?”
John Roberts, thought to be a swing vote in the final decision, also appeared skeptical of the viability standard, saying: “If you think that the issue is one of choice,” then “viability, it seems to me, doesn’t have anything to do with choice. If it is really about choice, why is 15 weeks not enough time?” Some legal analysts suggest this line of questioning indicates he would uphold Roe but get rid of the viability standard to allow prohibitions earlier during pregnancy.
Breyer, Kagan, and Sotomayor gave what Focus on the Family’s Bruce Hausknecht called “long-winded speeches” indirectly aimed at their pro-life colleagues, urging them to respect precedent and acknowledge the importance of abortion. Several commentators at National Review, which live-blogged the proceedings, said that Sotomayor’s interventions sounded like Planned Parenthood talking points, more likely to come out of the mouths of Democratic politicians like Nancy Pelosi or Alexandria Ocasio-Cortez than a Supreme Court justice. Sotomayor asked (Mississippi Solicitor General) Stewart, “how is your interest anything but a religious view?” suggesting that the assumption “that a fetus is life” is purely a religious belief and not one backed by science or logic.
Prior to oral arguments, there were 132 amicus briefs, a friend of the court submission making legal arguments for why the Court should rule one way or another. In 2019-2020, cases had an average of 19 amicus briefs; the record for amicus briefs is 148 for Obergefell v. Hodges, the decision that allowed same-sex “marriage.” With 81 briefs supporting Mississippi in its position and 51 supporting the abortion facility, there was clearly evidence rebutting the hope expressed in Casey that the issue was settled. Americans United for Life argued that “our national abortion jurisprudence demands reconsideration” because Roe is “confusing and unworkable in the lower courts, and this compromises dependability of American law.” This, more than their (correct) assertion that “there is no right to abortion in the Constitution, and it is time the Court acknowledged that evident reality” is likely to speak to Chief Justice John Roberts, who is widely understood to care deeply about the reputation of the Supreme Court.
During the oral arguments, pro-life demonstrators far outnumbered pro-abortion protesters on the steps of the Supreme Court. The number of arguments against Roe made by the justices inside the Supreme Court far outnumbered the arguments made in defense of the infamous 1973 ruling, to say nothing of the quality of those arguments. As Roger Severino, former director of Health and Human Services, Office for Civil Rights in the Trump administration, said, the pro-life movement has reason to rejoice by what they heard from six justices.
Mississippi Solicitor General Stewart said in his opening statement of Roe and Casey: “They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They’ve poisoned the law. They’ve choked off compromise. For 50 years, they’ve kept this Court at the center of a political battle that it can never resolve … Nowhere else does this Court recognize a right to end a human life.”
Robert P. George, professor of jurisprudence at Princeton, wrote in First Things, that “Roe must go” because it is morally and constitutionally indefensible “and has been since the moment it was handed down.” After 50 years, the Court has a chance to rectify its biggest mistake.
The ruling is not expected until the Court’s term expires in June. In the meantime, the pro-life movement should prepare for a cultural, legal, and political reality that Roe will no longer haunt the United States. If that occurs, the abortion debate is not concluded; rather an unfortunate chapter is ended, and the battles to defend preborn babies from abortion will move to the states and Congress.
