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.
[…]
What about, say here in Massachusetts, all four bishops writing a passionate letter to Senator Ed Markey expressing sincere disappointment in his vote while explaining the spiritual seriousness of casting a vote against curtailing abortion and then copying and distributing this letter to every Catholic parish in Massachusetts with the firm instruction it be read at Mass?
Excellent idea. If such were to happen it is a virtual certainty that the excrement would surely hit the air circulator.
Thanks for the colorful addition.
I just called the Senator’s office in Bangor and was told that she is a practicing Catholic, which was news to me.
If they tried that (first of all the sun would fall from the sky when the earth stops spinning on its axis) I’m sure the pope would call them culture warriors or some other snide insult and completely undermine them anyway… so what’s the point?
What a shame the Magisterium does not take the initiative and make a public and/or pulpit statement describing the offensive action and what procedures the public should take in light of what considerations the Church will undertake to protect innocent life and the risk proponents are taking relative to the practice of their faith. The Magisterium is called to SERVE the faithful by definition of its members. (Original comment)
Well, technically, okay.
Gee, I guess I’m “relieved” that Edward Peters feels our ‘concern.’
But Pelosi and the late Chappaquiddick Kennedy did vast amounts of legislative work to build the abattoir of abortion. Hundreds of votes from committee to floor. Decades of work.
Not pervasive enough? Not obstinate enough?
I acknowledge a canon lawyer’s knowledge in this.
But does Edward Peters understand, thoroughly, the depth that these legislators and their company have fought to make abortion possible?!?
Or does only the one wielding the metzenbaum forceps has blood on his hands?
Why do we even bother any more? Just close it up. It’s such a joke. Gotta love that New Pentecost though.
This article just shows that Catholic sacramental discipline is dead and buried. Anything goes.
Does not “the long string of similar steps that most of these fourteen have taken before” amount to “obstinate perseverance in manifest grave sin”?
The state simply has no authority whatsoever to “legalize” the murder of innocent humanity. Caesar has claimed for himself authority over innocent human life that belongs to God alone. We are not to render unto Caesar that which belongs to God.
To convey approval of Caesar’s usurpation of God’s authority by allowing government officials who are known by all to be staunch and longstanding advocates of “legal” murder to receive the Eucharist, amounts to burning incense to Caesar; it is blatant idolatry; it is a particularly sacrilegious, ritualistic public display of the transfer of the primary allegiance of the bishops from Christ to Caesar.
This will eventually be the death of genuine Christianity in the United States if it isn’t stopped.
If any of these politicians are “practicing” Catholics they should be socially shunned by their fellow parishioners (which association probably happens only rarely) and publicly confronted.
Well, let’s look at this from a ‘New Church’ post VII point of view.
These senators and all those that came before them were only voting to allow others to have religious freedom. After all, if abortion is not against one’s own conscience, one must be free from coercion right? Isn’t that in essence the whole theme of church-state policy since DH? Wouldn’t Pope Francis prefer allowing these senators and the abortionist also to continue receiving communion while they are ‘accompanied’ to a better way which they may never attain? and isn’t that what the church has been doing since 1973 anyway?
So, to some it may LOOK like cowardice to avoid confrontation, but in reality, it’s the ‘new Pentecost’ in action.
Let’s look at it this way: Dedicate your next Rosary to the ending of abortion AND to the grace of contrition for these and other ‘Catholic’ politicians who have chosen political gain over one of the most sacred tenants of their – OUR faith.
These bloody 14, Pelosi, Kerry, the Kennedy clan, Biden, the Cuomos, Hillary’s running mate whose name I have (thankfully) forgotten, ad infinitum, ad NAUSEAM
In reality, the hierarchy has a share in their guilt because they let them think they what they’re doing is alright.
While busily attending to the technical apparatus of canon law, Peters seems oblivious to the reality that the Bloody 14 are not parties merely to a single and isolated act but rather have years and even decades of involvement in such acts, including repeated legislative votes and innumerable public election positions and statements. Of course pertinacity exists and is objectively ascertainsble. I am stunned st the myopia or even spiritual blindness that prevents recognizing that excommunication and denial of Communion are not only canonically possible but also in fact ecclesially urgent and indispensable.
The beginning of the article brings up a point that is very telling against the Church hierarchy. That is that the burden of upholding Church teaching has been unceremoniously dumped into the laps of the laity.
*
We need a frank discussion about Apostolic Succession. Who has the controlling authority to bind and loosen? Who has been given the Keys to the Kingdom? How many priests, bishops, and cardinals actually speak with the clarity of voice and written word as did the Apostles? Who are the shepherds? I wonder how much of the current talk about the universal priesthood of the Church laity is a way for some members of the Magisterium to outsource the Apostolic duties that belong to them alone? Does authentic Apostolic Succession exist in the modern Church, or are we Apostolic in name only?
The Bishop in the diocese of each of these people should 1) Contact each of them privately and inform them that as long as they continue with this conduct they should not present themselves for Holy Communion and then 2) Instruct the priests and Eucharistic Ministers in each parish to withhold Holy Communion to them should they ignore the Bishop’s orders, which they probably will. (If any of them should use the odious phrase “speaking truth to power” – pass go and do not collect $200.)
This, in turn, should cause the excrement to hit the air circulator – immediately. The press will almost certainly go off on a separation-of-Church-and-state rant, so the Bishop should have a statement ready to go. Part of that statement should emphasize that he told these people essentially this – You are free to do what you want to do, and these are the consequences.
Meanwhile we the laity should remember that throughout Church history, reform in the Church has almost always begun WITH the laity.
On Friday I followed a link (provided at thecatholicthing.org) to an article, written some years ago, for America magazine by Dr. Germaine Grisez. The article can be accessed using the thecatholicthing link or at http://www.americamagazine.org/issue/494/article/catholic-politicians-and-abortion-funding.
Readers of this piece posted today by Dr. Peters would, I think, benefit from a joint reading with the America article. Also, we would derive even more benefit from his explanatory commentary on the Grisez piece.
Dr. Peters teaches us that “… voting pro-abortion is not procuring an abortion for purposes of Canon 1398 …”. I assume that this is an example of supporting a “best possible choice” under the existing circumstances. (How difficult it must be for a [politician] to enter the kingdom of heaven. Still I do understand that prudent decisions must be made in this fallen world, in hope that they may represent small steps to the right end.)
But Dr. Grisez clearly and logically argues another point of view about “voting pro-abortion”, particularly about the consequences of such votes, which we might rather not think about. He encouraged us to think about it.
I’m not Catholic, so I don’t understand. Should these acts not violate cannon law, they are surely amoral, which I would think does violate cannon law. Would a refusal to repent be cause for excommunication? I’m honestly ignorant.
Dr Peters,
So, ‘voting’ pro-abortion is not the same as ‘procuring’ an abortion, and the voter is not to be held culpably accountable for the numerous deaths of the innocents his vote is seeking to “legally” facilitate? Would not the voter render himself/herself complicit in every subsequent murderous act to which their vote would give legal sanction? Such a voter betrays the faith and lays challenge to the mind of Christ Himself Who warned, “It would be better for persons who would bring harm to a child, that they have millstones hung around their necks and that they be cast into the sea.” (Matthew 18:6) These people are not of the faith. Pray for them that they might yet find it before it is too late. They should certainly not be admitted to receive Holy Communion. Alan