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.
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The Church made a catastrophic error when the authorities in the Vatican did nothing to punish the dissenters from “Humanae Vitae”. It has been all downhill since. The people concluded that the Church no longer believed that its beliefs were worth defending, or that the Church no longer held the beliefs it once had, but was unwilling to admit that a change in its beliefs had taken place.
Both Andrew Cuomo and Nancy Pelosi should get one of these ceremonies. I am not sure whether they can be done together:
https://www.youtube.com/watch?v=NRt2cKvJLlE
Powerful clip…
I believe that the letter next to Cuomo’s name under the photo should be a D and not an R.
It’s confusing, I admit, but it stands for “right”, not Republican.
This will continue as long as bishops fail to excommunicate the Catholic politicians who support abortion on demand? So, what are you going to do about this?
The former New York Governor Mario Cuomo could not see the difference between the universal natural law and ANY defense that might be offered by either one church or another–or by elementary reason alone…
(“The Church is in no way the author or the arbiter of this [moral] norm . . . [she] proposes it to all people of good will. . . .”; Pope St. John Paul II, Veritatis Splendor).
Instead, to defend the truth about humanity, the governor myopically argued (in 1984), would be to impose his Church’s morality on all of society and would constitute a sectarian “Catholic theocracy.”
The now-generation Governor Andrew Cuomo, a carefully weaned modern-day mouthpiece of a Secular Humanist Theocracy, issued his own trendy fatwa even before this latest barbarism, when he announced in 2014 that those who oppose abortion and gay “marriage” “are not welcome in New York.”
Not welcome in New York! Off with their heads! In 1789 the witless spectators at the Place de la Concorde also celebrated and cheered.
“Not welcome in New York.” I guarantee the same authorities signing the latest abortion bill will look to literally rid New York of those not welcome. We are at the beginning of a far worse time. With the Church in shambles, with our culture a waste land, our only hope is the direct hand of God.
In other words those who affirm Genesis and thus affirm that it Is God, The Author of Love, of Life, and of Marriage, not Caesar, King John, or John Locke, Who Has Endowed us with our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, from the moment every human person is created, which is not the same moment we were born, is not welcomed in New York.
On whose authority does Mr.Cuomo speak? Certainly not on the authority of The Author of Love, of Life, and of Marriage, Who necessarily would be The Author of our unalienable Rights.
The “Seamless Garment” ideology inaugurated by the late Chicago Archbishop (and reported sex abuse coverup artist) Cardinal Joseph Bernardin is to blame for the current crisis. It puts absolute non-negotiable issues such as opposing abortion, euthanasia, and redifining marriage alongside issues Catholics can legitimately debate such as capital punishment, whether a particular war is just, health insurance, immigration, and gun control, and reduces them all to a checklist where a politician agrees with “eight out of ten” issues on this list can not only claim to be a Catholic in good standing, but a “superior” one to another Catholic who does not agree with all the issues on the checklist (never mind if the
few” issues he/she does happen to agree with just happen to be the absolute non-negotiables such as opposing destruction of innocent life at all stages).
The time has come to consign the seamless garment to the dustbin of history.
Hard to do when the current Pope and his hand-picked bishops seem to enthusiastically embrace it. He has a “bigger agenda,” as Cardinal Cupich reminded us.
A thought to ponder is this: Judas was very close to Jesus and was steeped in sin and we can presume he received holy communion, yet Jesus did not excommunicate Judas. He bestowed immense privileges and graces upon Judas, yet he did not correspond to those graces. Still, Jesus did not excommunicate him. This is a stance that some Bishops take as far I can see….right or wrong?
Steeped in what kind of sin? The only one that’s mentioned, until his betrayal, was stealing from the purse, and for all we know he may have repented of that sin, even confessed it. Judas’ betrayal of Jesus hadn’t happened yet when he received Holy Communion.
The article on Judas in the old Catholic Encyclopedia says, “But, apart from this consideration, it may be urged that in exaggerating the original malice of Judas, or denying that there was even any good in him, we minimize or miss the lesson of this fall. The examples of the saints are lost on us if we think of them as being of another order without our human weaknesses. And in the same way it is a grave mistake to think of Judas as a demon without any elements of goodness and grace. In his fall is left a warning that even the great grace of the Apostolate and the familiar friendship of Jesus may be of no avail to one who is unfaithful.”
Judas left before the Eucharist.
You’re right. I got mixed up.
St. Paul recommends excommunication.
9 I wrote to you in my letter not to associate with immoral men;
10 not at all meaning the immoral of this world, or the greedy and robbers, or idolaters, since then you would need to go out of the world.
11 But rather I wrote to you not to associate with any one who bears the name of brother if he is guilty of immorality? or greed, or is an idolater, reviler, drunkard, or robber—not even to eat with such a one.
12 For what have I to do with judging outsiders? Is it not those inside the Church whom you are to judge?
13 God judges those outside. ” Drive out the wicked person from among you.”
Under the 1983 Code of Canon Law, Andrew Cuomo is automatically excommunicated as: Accomplices who were needed to commit an action that has an automatic excommunication penalty (can. 1329). Cuomo would love nothing more than for Dolan and the bishops to publicly excoriate him. That would make him a hero in the eyes of his supporters. We catholics are well aware of his religious malfeasance and should pray for his immortal soul.
A columnist on Townhall wrote this:
“Cardinal Timothy Dolan, the Archbishop of New York, told “Fox & Friends” Monday morning that excommunication would merely be “ammunition” for pro-abortion opponents. Dolan believes they would dismiss the issue as a Catholic one, instead of an issue related to human rights in general. But he said he gets “wheelbarrows” full of letters a day asking about it.
“He’s not going to be moved by this, so what’s the use?” Dolan remarked.”
Now there’s a brilliant argument. Never mind canon law, just “he won’t be moved.” First of all, how do you know? Maybe he would. Secondly, it would demonstrate that this is a serious matter and others might be jarred into realizing it.
“The New York archbishop did admit that excommunication for anyone who performed abortions or supported the practice was the norm until roughly 50 years ago, when he says the church began to focus more on mercy.” (https://townhall.com/tipsheet/briannaheldt/2019/01/28/catholic-leaders-call-for-cuomo-to-be-excommunicated-over-flagrant-celebration-of-proabortion-bill-n2540379)
I don’t think that allowing people to wallow in evil and still pretend to be “good Catholics,” supporting killing babies and setting a terrible example which might influence others to evil as well, is merciful.
What kind of sniveling moral coward *is* Cardinal Dolan???
Gov Andrew Cuomo justifiably deserves excommunication from the Church. Our unfortunate issue our current Canon Laws as Dr Edward Peters shows does not provide such sanction based on the given circumstances [although that’s contested]. Many believe the Canons weakened under John Paul II must be revised. Given teeth. Similarly bishops must be held to the highest standards for defense of the faith. Fox News’ interview of Cardinal Dolan is indication of that. As said by author Mainwaring on LifeSite he comes across as “cagey’, sidestepping direct response regarding penalty and serious sin. The Church is no longer Catholic if a Bishop mandated to address serious sin truthfully instead responds when asked, “How would you respond Cardinal Dolan to a woman seeking an abortion?” His response, “The Church may disagree with your decision but…”. That response by Cardinal Dolan implies her choice for killing her infant is open to conditions and is manifest dereliction. When such an evil is manifest the Church must react. He deserves some form of rebuke, at least from his peers [not in reference to Bishop Barron rather by Ordinaries]. However under this Pontificate his obtuse response will probably be considered praiseworthy. Cardinal Dolan when asked about being a Democrat, a Party that strongly promotes, seeks to enforce Abortion, provision of abortifacients, contraceptives, transgender choice by minors, Homosexuality in all its deviate forms, radical socialism and deems anyone whether for religious reasons or not opposed intolerant and subject to lawful punishment responded “My Grandfather said there are two places we must not question, the Confessional and the voting booth. I will not answer that question!”. Although I viewed a portion of the interview what I observed was “cagey”. Not fully committed. Perhaps I’m being unfair to the Cardinal. Nonetheless that was my impression and likely reason why Laity like Gov Cuomo abandon faithful practice. Bishop Barron Chaos doesn’t erupt spontaneously. Most of us contribute either by compliance or moral frailty. Yes we need more Laity like Thomas More. And more Hierarchy like Cardinal John Fisher.
In my view you are not being unfair to the Cardinal. You are being most charitable. My charity is being challenged when I consider the Cardinal’s adroit evasiveness in responding to the truth.
What this ultimately shows is that the true abortion mentality is and has always been abortion-on-demand-at-all-times. For years now pro-lifers have had to face arguments about worst case scenarios such as the life of the mother, rape and incest etc. But all along the abortionist has desired it in the best case scenario – whenever convenient even in the best of times. As to “chaos”, the progressive method is controlled chaos, managed evil; and I believe there is much more management in store over the long term.
Ed Condon, in First Things:
Excommunicate Cuomo
https://www.firstthings.com/web-exclusives/2019/01/excommunicate-cuomo
Sure, excommunicate him, then watch him be re-elected in a landslide. We cannot stop abortion with Church formalities. The voters elect pro-death candidates and policies. Education of voters is harder than excommunication because we have to join in the work.
The issue with education on the crime of abortion is the almost complete lack of exhortation on the subject from the pulpits. Priests in general will not touch the issue with a ten foot pull. Just think about this for a second or two that 64,000,000 million plus babies have been aborted since Roe. How many know this? The priest sure don’t say anything. Everyone thinks that being a good Catholic parish is about having food banks, giving poor kids gifts for Christmas, and my all time favorite “Dollars for Deacon” collection for buying cloths for the poor. Of course there is nothing wrong with these, but the complete blindness to abortion is a serious scandal by the Church. Frankly the only way to bring the issue in the open is excommunication of the so called Catholic politicians who support abortion. Of course there will be a severe denunciation of the Church, but that is no excuse to stand around do nothing while babies are butchered. Of course nothing will happen because that what the Catholic Church in America is good for on abortion – doing nothing on this issue.
Add to all that you say: PF believes that children need more sex ed. Not more love, not more brothers and sisters, not a mom and a dad in committed sacramental marriage. No. Our children today need sex ed.
Abortion is the eighth sacrament of the American Catholic Church.
If all those voters who identified as Catholics voted the Church’s teaching on abortion, then no candidate could ever even consider supporting it.
Abortion would rapidly become the “third rail” of American politics.
It is because of Catholics that infanticide has come to America — those in the pews as well as those in the pulpits. It’s an undeniable fact: Catholics who vote Democratic are responsible for the murders of more innocent people than were the Nazis in World War II.
God deserves so much better.
Not just Catholics…Protestant evangelicals were silenced as well or lacked the conviction to speak the Truth. All man-made laws are the imposition of the majority’s “morality.” “I’m against murder, but who am I to impose my values?” Also, we can blame American ourselves for our rotten education system – you don’t need to be a Catholic or a Southern Baptist to see the absolute fallacy of such logic…
The state will do as the state is — it is time for Roman Catholics to mistaken believe that the state is just another form of political organization, and that the problems inherent to this form of political organization can be solved by simply voting for the candidate that meets some checklist.
Sen. Ben Sasse is bringing a vote to the Senate on Feb. 4th, requesting all senators to state their support or non support of third term abortion and infanticide. I think a similar vote should be brought before the USCCB. I predict there would be a lot of bishops not answering…
https://youtu.be/tMTJZMHRM6U
The erroneous notion that private morality and public morality can serve in opposition to one another and are not complementary, has led to grievous error in both Faith and reason. It is not Loving or Merciful to desire Salvation for me and not for thee.
I deleted entire article & comments crucifying
our Holy&MostBeloved Holy Father Pope Francis. I can testify to people who returned /or converted to Holy Mother The Church,Strictly because of HIS Holiness’ .His compassion & Love For The sick,poor,homeless,refugees,immigrants I put I put in my Facebook Complaints Reason was Harrassment .
I recall Andrew Cuomo Father Mario Cuomo struggled when he was asked about the abortion question. Deep down he knew deep in his heart abortion was wrong but he did not give a strong answer. Mario Cuomo seemed like a very good man. He may very well been steps away from the United States Presidency. Strike down ROE versus Wade immediately for a America too be great once again! PRAY! PRAY! PRAY!