Students from Liberty University pray in front of the U.S. Supreme Court during oral arguments in the Dobbs v. Jackson Women’s Health Organization abortion case on Dec. 1, 2021. / Katie Yoder/CNA
Washington D.C., Dec 1, 2021 / 15:40 pm (CNA).
The U.S. Supreme Court heard oral arguments about the constitutionality of Mississippi’s 15-week state abortion ban Wednesday, a high-stakes test of the settledness of legalized abortion in a deeply unsettled nation still sharply divided over the right to life.
The case, Dobbs v. Jackson Women’s Health Organization, is viewed by many Catholic leaders and pro-life groups as the best chance yet to overturn the court’s landmark 1973 Roe v. Wade decision, which has barred restrictive early-term abortion laws like Mississippi’s for the past 48 years.
Over that time, some 62 million abortions have taken place in the United States, statistics show, a grim toll the Catholic Church sees as both a grave evil and a catastrophic political failure.
Conversely, a decision that strikes down Mississippi’s 2018 law, called the Gestational Age Act, which prohibits abortions after the 15th week of gestation, would represent a devastating setback for the pro-life movement. For many years it has pinned its hopes of overturning Roe on the goal of securing a supermajority of conservative justices on the nation’s highest court, as is the case now.
With thousands of people keeping a vocal but peaceful vigil outside the Supreme Court on a bright, brisk morning in Washington, D.C., the nine justices took up the intensely anticipated case in a proceeding that lasted nearly two hours.
Among the demonstrators were four women shown in a viral video posted online swallowing pills behind a large sign that reads, “WE ARE TAKING ABORTION PILLS FOREVER,” a reference to the prescription drugs mifepristone and misoprostol that when used in combination will induce a miscarriage.
Mississippi is asking the court to do more than simply uphold the state’s abortion law; it wants the court to overturn both Roe and a later ruling that affirmed it nearly 20 years later, the 1992 case Planned Parenthood v. Casey.
Both Roe and Casey “have no basis in the Constitution,” Scott G. Stewart, the state’s solicitor general, said in his opening argument.
“They have no home in our history or traditions. They’ve damaged the democratic process. They poison the law. They’ve choked off compromise for 50 years,” he said.
In Roe, the court ruled that states could not ban abortion before viability, which the court determined to be 24 to 28 weeks into pregnancy. Casey, viewed as the “Dobbs” of its day, found that while states could regulate pre-viability abortions, they could not enforce an “undue burden.” The Casey court defined that term to mean “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
Stewart said the two cases have “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,” he said.
A question of ‘settled’ law
Legal scholars see the court’s reluctance to overturn past rulings, even highly controversial ones, as Mississippi’s greatest hurdle in Dobbs.
As anticipated, that legal principle, known as stare decisis, loomed large Wednesday, dominating the litigants’ oral arguments and the justices’ questions. Justice Amy Coney Barrett, the newest addition to the court’s 6-3 conservative majority, said that stare decisis is “obviously the core of this case.”
The term comes from the Latin phrase, Stare decisis at non quieta movere, which means “to stand by things decided and not disturb settled points.”
Stewart, the Mississippi solicitor general, argued that legalized abortion remains an unsettled debate in the United States nearly a half-century after Roe. He argued that the issue should be left to democratically elected state legislatures, not the courts.
“The Constitution places its trust in the people. On hard issue after hard issue, the people make this country work,” he said.
“Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us when an issue affects everyone. And when the Constitution does not take sides on it, it belongs to the people.”
In its court brief, Mississippi cites stare decisis as the reason Roe and Casey should be overturned.
“Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,” the brief states. Roe itself broke from precedent because it invoked “a general ‘right to privacy’ unmoored from the Constitution,” the state argues.
“Abortion is fundamentally different from any right this Court has ever endorsed. No other right involves, as abortion does, ‘the purposeful termination of a potential life,’” the brief states. “Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.”
But Julie Rikelman, litigation director of the Center for Reproductive Rights, sharply disagreed.
“Casey and Roe were correct,” Rikelman, who represented Jackson Women’s Health, Mississippi’s last remaining abortion provider, told the justices.
She added that there is an “an especially high bar here” as the Supreme Court rejected “every possible reason” for overturning Roe when it decided Casey nearly 30 years ago.
“Mississippi’s ban on abortion two months before viability is flatly unconstitutional under decades of precedent. Mississippi asks for the court to dismantle this precedent and allow states to force women to remain pregnant and give birth against their will,” she said.
“Two generations have now relied on this right,” Rikelman continued. “And one out of every four women makes the decision to end a pregnancy.”
A third attorney arguing before the court Wednesday, U.S. Solicitor General Elizabeth B. Prelogar, representing the Biden administration in opposition to Mississippi’s abortion law, couched the Dobbs case in similar terms. She said overturning Roe and Casey would be “an unprecedented contraction of individual rights and a stark departure from principles of stare decisis.”
Credibility concerns
Liberal justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan argued that overturning Roe and Casey would undermine the court’s integrity by signaling that its decisions were influenced by political pressure.
“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” Sotomayor said. “I don’t see how it is possible.”
Conservative Justice Brett M. Kavanaugh, however, pushed back against that reasoning. He noted that “some of the most consequential and important” decisions in the Supreme Court’s history overturned prior rulings. He cited such cases as the historic civil rights case Brown v. Board of Education, which struck down legalized segregation, and Miranda v. Arizona, which required police to inform suspects they have a right to remain silent.
“If the court had done that in those cases (and adhered to precedent), this country would be a much different place,” Kavanaugh said. Why then, he asked Rikelman, shouldn’t the court do the same in Dobbs, if it were to deem that Roe and Casey were wrongly decided?
“Because the view that a previous precedent is wrong, your honor, has never been enough for this court to overrule, and it certainly shouldn’t be enough here, when there’s 50 years of precedent,” Rikelman responded. The court needs a “special justification” to take such a step, she argued, saying that Mississippi has failed to provide any.
Said Rikelman: “It makes the same exact arguments the court already considered and rejected in its stare decisis analysis in Casey.”
Justice Samuel A. Alito Jr., a conservative, took up a similar line of questioning with Prelogar, the U.S. solicitor general.
“Is it your argument that a case can never be overruled simply because it was egregiously wrong?” he asked.
“I think that at the very least, the state would have to come forward with some kind of materially changed circumstance or some kind of materially new argument, and Mississippi hasn’t done so in this case,” Prelogar responded.
“Really?” Alito replied. “So suppose Plessy versus Ferguson (an 1896 decision that affirmed the constitutionality of racial segregation laws) was re-argued in 1897, so nothing had changed. Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?”
“I think it should have been overruled, but I think that the factual premise was wrong in the moment it was decided, and the court realized that and clarified that when it overruled in Brown,” Prelogar said.
“So there are circumstances in which a decision may be overruled, properly overruled, when it must be overruled simply because it was egregiously wrong at the moment it was decided?” Alito asked.
When Prelogar didn’t directly answer the question, Alito pressed again.
“Can a decision be overruled simply because it was erroneously wrong, even if nothing has changed between the time of that decision and the time when the court is called upon to consider whether it should be overruled?” he asked. “Yes or no? Can you give me a yes or no answer on that?”
“This court, no, has never overruled in that situation just based on a conclusion that the decision was wrong. It has always applied the stare decisis factors and likewise found that they warrant overruling in that instance,” Prelogar said.
Roberts cites China, North Korea
While the main focus of Wednesday’s proceeding related to stare decisis, there was also discussion of the viability standard established by Roe.
“I’d like to focus on the 15-week ban because that’s not a dramatic departure from viability,” Chief Justice John G. Roberts Jr. said in an exchange with Rikelman.
“It is the standard that the vast majority of other countries have. When you get to the viability standard (set at 24 to 28 weeks) we share that standard with the People’s Republic of China and North Korea,” he said.
In response, Rikelman said Roberts’ statement was “not correct,” arguing that “the majority of countries that permit legal access to abortion allow access right up until viability, even if they have nominal lines earlier.” She elaborated that while European countries may have 12- or 18-week limits, they allow exceptions for “broad social reasons, health reasons, socioeconomic reasons.”
A 2021 analysis by the Charlotte Lozier Institute found that 47 out of 50 European nations limit elective abortion prior to 15 weeks. Eight European nations, including Great Britain and Finland, do not allow elective abortion and instead require a specific medical or socioeconomic reason before permitting an abortion, the institute said.
The court may not announce a decision in the Dobbs case for several months. It may come at the end of its current term, in late June or early July, when major decisions are often announced.
[…]
I am embarrassed that CWR has once again referred to President Trump as a focus of good morals. Given all his sexual escapades before and while he was in office places him as persona non grata with the life movement.
Not sure why you’re embarrassed by CWR running a NEWS story about an event, containing information about what was said and done. You do know how news reports work, right? Goodness. As for his alleged sexual “escapades” while “he was in office” [sic], do you have some NEWS that the rest of us haven’t heard yet?
Thanks Carl for defending President Trump.
President Trump is on the receiving end of all kinds of slander and false accusations recently (the recent false accusation that he is “racist” is mortally sinful, and that false accusation was even propagated by the USCCB, a prominent Cardinal, and many bishops! He, along with 3 others denied he said, “s-hole”; instead, he was APPARENTLY merely accurately describing Third World countries, and that is not racist – otherwise even the USCCB would be racist for calling those countries 3rd World!)
It is likely that morganB is an angry “Resistance” member, whose group is much like Nazis including their salute which is a clenched “solidarity fist”, and whose “Aryan race” is “diversity” and “multi-culturalism.”
The forceful and aggressive push for multi-culturalism by the violent and aggressive Resistance Leftists mirrors the Nazis forceful push for Aryanism; except the New Nazis (the “Resistance”) are racist against white Americans, and the New Nazi Salute is the clenched and raised “solidarity fist.”
This racism against white American citizens is a tenet of “Russia’s errors” which Our Lady of Fatima denounced and implied is mortally sinful. After the U.S. defeated Naziism in WWII, the Nazis spread racism against white Americans in attempt to conquer their enemies, the U.S.A. Now, that racism against white Americans has entered through the Southern border as well as through other means.
“Russia’s errors” – mortal sins – spread to Latin America, too, and now that Latin America is invading the U.S., we see quite clear anti-Americanism on display. Illegal immigration and amnesty for DACA dreamers are forms of theft, lying, and cheating. They also often include coveting thy neighbors’ goods, and thus, amnesty and the Dream Act are likely mortal sins.
Long-winded, but necessary. Mr. Olson, you are doing an upright thing by maintaining President Trump’s good name.
The operative word for the website’s soft touch on Trump is “enablement”. Would you suggest that Trump play the role model for my youngsters? He is such a phony with more than 2000 lies in one year. The reason I am embarrassed is the church aligning itself with a narcissistic, anti-immigrant buffoon who cares only about himself. Strange bedfellows indeed!
Your inability or unwillingness to make basic, fundamental distinctions is lamentable. But hardly uncommon. Carrying a news report on Trump’s remarks to the March of Life participants is not “enablement”. It’s called “news”. If you would actually read this site, you would find far more criticism of Trump than praise. For instance, back in April 2017, I wrote:
And that is just one example. That said, I don’t think Trump is Hitler, or that he should be removed from office because of his many bad and immoral actions of the past. I assume, for sake of argument, that you robustly demanded that Bill Clinton be removed from office after it was made known that he and a young intern performed sexual acts on one another–in that same office? Or that you were angered with President Obama referred to a large swath of Americans as “teabaggers,” which is a thinly veiled reference to most disgusting sexual act? And to say the the American bishops have “aligned” themselves with Trump is beyond laughable, especially when it comes to immigration. You either are unable to read and process news, or simply repeat the lazy, ideological blatherings of others. Try to do better.
While he was in office? I thought that was just confined to FDR, JFK, and WJC?
Please inform me.
Many if not everybody has a past but it’s where you end up is what matters.
Living with third wife (sex-kitten model past, with no apologies evident), innuendo based tweets. It’s really the fact that he has NOT repented his pre-office life, we’re supposed to just write it off as locker room normality.
Scrape his MFL address, there is precious little objective hope for abolition under his auspices. You don’t set up multiple bureaucracies to protect “religious freedom” for prolife workers if you are going to abolish abortion anyway. These policies of his are deckchairs on the titanic.
Gorsuch is a “states rights” for abortion man, in the mold of Scalia just as Trump promised. Woohoo! “Walking around persons” supremacy!
Bragging about low unemployment for women is about the richest irony you can get when his daughter is delegated to be daycare czar.
Oh, and let’s not forget all of the slushiness on homosex and transgender in his first year. So perhaps folks are conflating that with his personal life simply because it’s all of a piece with his pre-presidential-run.
” You don’t set up multiple bureaucracies to protect “religious freedom” for prolife workers if you are going to abolish abortion anyway.”
It is not in his power to abolish abortion, thanks to the disgraceful decision of the Supreme Court.
a)”While he was in office?” I haven’t heard of any accusations about anything of the sort while he has been in office.
b)Whatever his sins may be, he is defending life. If he is “persona non grata with the life movement,” (which I take leave to doubt), they are being shamefully exclusive. Martin Luther King, Jr., was an adulterer and a plagiarist, but nonetheless is rightly honored for his accomplishments.
Listening to CNN MSNBC et Al the objection raised by MorganB prevails as the judgment and only issue. Constant. Unrelenting. Hypocritical. Why do so many find hope and are elated not only in what the enigma called Donald Trump has accomplished. But also in the man. Psychiatrists have even made Internet Analyses. Who is this man? Who has a jaded past and speaks, at times coarsely. Well we’ve found out who he is. He is us!
If half of the country is pro-life (although I would dispute that percentage) and half is pro-choice … who wins? This “fight” back and forth will go on forever. What do we do? How can we make everyone happy?
Father Morello is so right: “(Trump) is us”.
I cannot understand why people who appreciate his undeniable first-year achievements (especially on the pro-life, pro-family, pro-religious liberty fronts, not to mention his magnificent Rose Garden address to the March for Life) must always put their foot in a bucket by referencing real or alleged sins and misdemeanors he may have committed in prior years. As for his presumptively illicit union with Melania, let us not forget that a previous hero of the pro-life movement, Ronald Reagan, was living in a presumptively illicit union with his First Lady — and he accomplished a lot less for pro-life, pro-family causes in 8 years than Donald Trump has accomplished in one. In fact, one might argue that with the tenor of their AIDS victim advocacy, the Reagans did much to “legitimize” the homosexual lifestyle.
Trump is us, because with all of our sins and character flaws, we all are in the right place in this moment for life, for family and for religious freedom.
I am guessing that Morgan would NOT like us to exhume JFK’s body, put him on show trial for adultery and sexual abuse of women, including interns, and then shame him with a parade of 500 thousand mad-hatted nasty women.
Votes in favor of shaming JFK? I will count…0K?
Even in these darkened times there is still someone of considerable power to speak up and defend the unborn.
For all of his imperfections,Trump,should give us all hope.
I am a prolife Democrat who voted for and is thrilled to have Donald J. Trump as my President. The prolife movement could not have a better friend. Just look at what he has done for the movement in a short year with his Supreme Court pick, his Federal judiciary picks and his policies! So maybe he tweets too much and he is often linguistically challenged – but so what? His heart is in right place and he is a born leader who is clear and does what he says he will do. We should all thank God for giving us this imperfect man to lead our country.
Let he who is without sin cast the first stone. God’s mercy is very generous. Thank you God for President Trump