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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As the results of this fair, unfair, take your choice election play out, and the illusory start of an era of peace and brotherly unity, the malignancy of self deception will come to fore to the delight of atheists and socialists and the chagrin, better dismay of Republicans and Catholics who voted for him. We need but wait until Biden if he is confirmed having promised to remove previous protection from the Little Sisters of the Poor noted here by CNA, enforces [here the senatorial miracle of the Marne and Trumps’ three Supreme Court justices may save the day] provision of abortifacients, and unrestricted abortion as rule of the Land. Minorities who voted for him with alacrity will find the only benefit the continued construction of Planned Parenthood facilities in their neighborhoods. Homosexuals will continue to propagate their self destructive moral disease on our children with Biden’s blessings. All under the pall of a deluded idea of freedom as true freedom. Faithful Catholics will suffer far more than previously but in doing so will merit far more than previously.
Let’s hope and pray Republicans can keep the Senate. Biden can’t do much with gridlock. Georgia voters, we’re watching you!
What a shame that our Bishops decided to wait until 2 weeks before the election to even MENTION abortion as a factor in one’s Catholic vote?? I can’t recall the last time I heard Catholic INSTRUCTION from the pulpit regarding Catholic position on homosexuality, abortion, trans-genderism or couples living together unmarried. The church has evidently decided to opt out of instructing its members in Catholic morals. Are they afraid that some will leave if their sin is pointed out? Or concerned about the loss of their donations? Or both? To that I say a smaller more faithful flock would not be a bad thing. And at least people would be fully informed about the TRUTH of Catholic belief. This election was a case of too little, too late, stated in a manner which was too timid.
Yes, the Senate is the thing now, as far as I can see. (Canadian here trying to follow the proceedings).
It will be interesting to see if/how Biden tries to rein in his left flank.
So God is cool with Francis as Pope and Uncle Joe as President of the USA. What good did prayer do, if this is the result? Call me Doubting Thomas: I need to see evidence that God is doing good things in the world and that perseverance in faithfully adhering to Catholic doctrine is worth it. Seems to me that being a Francis or Biden or Pelosi Catholic is the way to go. God doesn’t seem to mind.
Kevin: first piece of advice: turn off the TV. If you have FB or Instagram, suspend the accounts for awhile. Pick up a good book and read. Find a subject that interests you.
Things are bad, and I don’t mean to downplay that, nor downplay how much worse things can get. They may get much, much worse indeed.
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But as bad as things may get, they have been much worse than even that. God willing, we will not go through another Year A.D. 536 any time soon. That actually is the one Youtube video you might want to watch: https://www.youtube.com/watch?v=0JBdedLx-GI
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Be thankful we will line 2020 and not 536.
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God gave people free will. Some choose to do truly horrific things, but others choose to help out their neightbor’s flooded home. I know, because I was a recipient of such assistance.
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Stop waiting for God to do good. YOU go do good. Perhaps then you will see that no, you have not been abadndonned.
*we live in 2020 not 536
Timeline is a great series. Ive actually watched that episode before.
There’s a wealth of good things to watch on YouTube. Thank you for sharing that link.
Come January 2021, the United States of America likely will have a Catholic President, Speaker of the House and Chief Justice of the Supreme Court. We have finally made it in America! These three, and so many others like them, are a testament to what the Church in the US has become over the last sixty years. Bishops, behold the fruits of your and your predecessors’ labors.
That’s a good one.
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Hope they USCCB gets everything they have been promoting . . . good and hard.
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The following actions by Trump continue to validate that his narcissism just can’t allow him to lose. His close advisers have asked him not to pursue the frivolous and not supported by fact legal attempts, post election. Just imagine that Trump has not called Biden to offer “congratulations”. His DNA will not allow him to accept any advice he disagrees with even when facts support that difference. His epitaph will include he was the most polarizing president in history.
Because Trump’s arch supporters will no longer be able to enable him, thus they may put a “for sale” sign on their front doors. Fox News, Rush Limbaugh, Newsmax and yes even the church. A major polarization is the subject of abortion. Trump, for political reasons, calls himself a “right to life” candidate when he was a pro-choice individual for most of this adult life. Biden has waffled on the subject. I do hold some hope that he will respect his churches value of life. I would ask Biden… look into the eyes of your precious children and tell me which one would you have aborted for frivolous reasons?
Excerpt:
“President Donald Trump has not conceded the election, citing recounts and legal challenges to some statewide counts. Since election night, Trump has alleged widespread fraud in the election and claimed himself to be the winner of all “legal votes.” On Saturday, he said calling the race was premature.
Tell me, morganB, back in 2000 when Kerry insisted that Bush hadn’t won and demanded a recount, were you advising him and his supporters that it was frivolous to demand a recount?
“Biden has waffled on the subject. I do hold some hope that he will respect his churches value of life. I would ask Biden… look into the eyes of your precious children and tell me which one would you have aborted for frivolous reasons?”
You are gullible beyond belief if you think that he will respect life, any more than Nancy Pelosi does. I’ll grant you that his surviving son is so precious to him that there is considerable evidence that he colluded with him to peddle influece and rake in money. But he sold his soul to the devil of abortion in order to get power; he’s unlikely to renege on his bargain now.
And abortion is wrong whether the reasons are frivolous or not.
Have you read about any of the shenanigans that went on regarding the vote? They’re not appearing on the mainstream media, of course, s perhaps you ought to do a little investigating of things like the late-night ballot dumps that all seemed to go in one direction, the statistical improbabilities, the preventing of Republican observers from geting close enough to observe…
Leslie, you seem to be anxious to convey your message. I don’t mind being tarred with a broad brush, but other souls may be insulted. All life is precocious. I would suggest that you lower the heat on the polarizing rhetoric. Your introspection would be a blessing.
If they are insulted by the truth, that’s a problem with which they will have to deal.
If you do indeed believe that all life is precious, why would you vote for the representatives of a party who support abortion to the last moment before birth and have not repudiated those members who approve the killing of babies who have already been born?
MorganB – so you don’t see the ridiculous irony of you telling someone to tone down on the polarizing rhetoric, you of all people! Talk about the pot calling the kettle black. You have no self-awareness.
All life is precocious(sic) morganB
You’re as much of a gaffeman as infanticide promoting Biden is, morgan. The sad thing is that neither one of you realizes it.
precocious adjective
pre·co·cious | \ pri-ˈkō-shəs
1 : exceptionally early in development or occurrence // precocious puberty
2 : exhibiting mature qualities at an unusually early age // a precocious child
Trump has the right and responsibility to verify the results of the election, particularly in those states where there are clear indications of possible fraud. Your own narcissism prevents you from seeing that. Your assumption that Biden will change course on his unequivocal support for abortion is also disconnected from reality, which is par for the course in terms of your posts.
If Biden had not capitulated to the extremist edge of the pro feticide lobby his chances of being the Democrat candidate would have been nil. He really has not said no to any scenario right up until infanticide. Perhaps even that.
It’s just appalling.
Morgan,
Does it matter to a dead child if their life was taken frivolously? Does seriously considering the options before committing feticide make a difference to the deceased infant? The end result is the same.
Don’t presume to speak in ignorance on God’s behalf. The scriptures clearly teach that God’s patience in not punishing sin immediately should not be interpreted as Him being indifferent. The wrath of God will be revealed against all ungodliness at some point, even yourself you do not repent. Don’t worry about Francis, Pelosi, or Biden. Get your own spiritual house in order.
Then don’t ask me to help fix the world if God won’t do his part. How many prolifers have spent decades trying to make the country more prolife, only to have that go down the tubes with a “Catholic” president who will undo much of their work? They should be among the most demoralized of all. Thanks a lot, God.
How many pro-life people are undermining their pro-life-ness and the policies they wish to implement (elimination of abortion) while using contraception? The vast majority. I am even willing to bet a huge hunk of young people who go to pro-life rallies are participating in unrepentent fornication. They barely know any better. Many older ones are divorced/remarried.
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Contraception and abortion are linked. Always have been. Always will be. Planned Parenthood and Abortion, Inc. know it well even if “pro-life people” refuse to believe it. No one fights harder to flood society with contraceptives than Planned Parenthood. They would not do so except that it increases the “need” for abortion and their services. Planned Parenthood gleefully go into public schools and teach about the need for contraception so teens can explore their “sexuality” and engage in fornication–thereby increasing the need for contracptives and abortions.
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And based on what I have experienced with doctors, regular ob/gyns would rather have young people be on contraceptives, sexually active, and come down with a fertility-reducing STD than deal with a happily pregnant patient–because the happily pregnant patient is a walking medical malpractice lawsuite if she becomes unhappy and doesn’t have a perfect Gerber baby. It is simply not in an ob/gyn’s financial-bottom-line interest to have pregnant patients. Teens on contraceptives and treating STDs pay the bill and are far safer.
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Honestly, pro-lifers are like people who hear their CO detector go off and open the windows, but refuse to go check the furnance and/or have it repaired.
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As Father Anthony Zimmerman once wrote: Contraception is creeping death.
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https://catholicsagainstcontraception.com/fr_anthony_zimmerman_contraception_is_creeping_death.htm
Yup.
Sonia Albright, don’t blame God. Blame the “Catholics” who really don’t know their faith and what it teaches. Many have not bothered to inform themselves nor delve into the issues, and are content with misinformation from a sound bite on the evening news. And this often leads to an ill-formed conscience.
The Catholic vote in this election was split right down the middle, with roughly 51% in favor of Trump, and 49% in favor of Biden.
Bishops and pastors need to lead. The number one social justice issue is the pro-life issue.
For whatever it might be worth, the following is part of a longer posting now making the rounds…
“1st…the winner of the President is not official until the electoral college meets and casts their votes. Until that happens, it is not final….regardless of what the MEDIA tells you. The electoral college can’t decide anything because there are lawsuits and the court proceedings must take place first.
“2nd….Court proceedings are GUARANTEED to happen in Michigan, Wisconsin, Georgia and Pennsylvania, and possibly Nevada and Arizona. But as of now they are GUARANTEED to happen in those 4 states. The SCOTUS won’t allow any litigation to proceed beyond inauguration because that would be a constitutional crisis. So they’ll make quick decisions.”
In short, let every vote count…but let every ballot counted be verified as a legitimate vote. For good form, at least, the bishops should have withheld their congratulations until all votes are certified, not only until the media (the Associated Press) made its projection.