Dobbs v. Jackson: What did Roberts, Kavanaugh, and Barrett say?

Jonah McKeown   By Jonah McKeown for CNA

Pro-life activists and other supporters protest outside the U.S. Supreme Court building in Washington Dec. 1, 2021, ahead of the court hearing oral arguments in the case Dobbs v. Jackson Women's Health Organization. (CNS photo/Jonathan Ernst, Reuters)

Denver Newsroom, Dec 1, 2021 / 17:22 pm (CNA).

By Jonah McKeown

As the wait begins for a decision in the Dobbs v. Jackson Women’s Health Organization abortion case, close attention will be paid to the comments and questions of three conservative justices on the U.S. Supreme Court that some observers view as possible swing votes: Chief Justice John G. Roberts Jr., and Associate Justices Brett Kavanaugh and Amy Coney Barrett.

At issue is a 15-week abortion ban passed in Mississippi, which challenges the court’s precedent of allowing abortions before viability, roughly 24-28 weeks into pregnancy. Pro-life groups are hoping the court, where conservative appointees have a 6-3 majority, will strike down Roe v. Wade, the landmark 1973 ruling that legalized abortion nationwide.

A number of questions from the justices focused on the principle of stare decisis, a Latin phrase roughly meaning “to stand by things that have been decided,” and understood to mean that the court generally stands by its own precedent.

The justices’ questions and comments were made in response to the three lawyers who gave oral arguments in the case on Dec. 1. They are: Scott G. Stewart, the solicitor general of Mississippi; Julie Rikelman, litigation director of the Center for Reproductive Rights, who was representing the Jackson Women’s Health abortion clinic in Mississippi, and U.S. Solicitor General Elizabeth B. Prelogar, who was representing the Biden administration in opposition to Mississippi’s law.

Here are some of the highlights of what Roberts, Kavanaugh, and Barrett said during the proceeding:

Chief Justice John G. Roberts Jr.

Roberts to Stewart: “On stare decisis, I think the first issue you look at is whether or not the decision at issue was wrongly decided. I’ve actually never quite understood how you evaluate that. Is it wrongly decided based on legal principles and doctrine when it was decided or in retrospect? Because Roe — I mean, there are a lot of cases around the time of Roe, not of that magnitude but the same type of analysis, that went through exactly the sorts of things we today would say were erroneous, but do we look at it from today’s perspective, it’s going to be a long list of cases that we’re going to say were wrongly decided.”

Roberts to Rikelman: “…if you think that the issue is one of choice, that women should have a choice to terminate their pregnancy, that supposes that there is a point at which they’ve had the fair choice, opportunity to [choose], and why would 15 weeks be an inappropriate line? Because viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”

Roberts to Rikelman: “…I’d like to focus on the 15-week ban because that’s not a dramatic departure from viability. It is the standard that the vast majority of other countries have. When you get to the viability standard, we share that standard with the People’s Republic of China and North Korea. And I don’t think you have to be in favor of looking to international law to set our constitutional standards to be concerned if those are your — share that particular time period.”

Roberts to Rikelman: “It is certainly true that we cannot base our decisions on whether they’re popular or not with the people. Casey seemed to say we shouldn’t base our decisions not only on that but whether they’re going to — whether they’re going to seem popular, and it seemed to me to have a paradoxical conclusion that the more unpopular the decisions are, the firmer the Court should be in not departing from prior precedent, sort of a super stare decisis, but it’s super stare decisis for what are regarded as — by many, as the most erroneous decisions. Do you think there is that category? Is there — or is it just normal stare decisis?”

Roberts to Prelogar: “…your discussion of the reliance interests and the ability of women and men to control their lives in reliance on the right to an abortion, the argument would not be as strong, I think you’ll have to concede, given what we’re talking about, which is not a prohibition; it’s a 15-week line. Is that right?”

Justice Brett Kavanaugh

Kavanaugh to Stewart: “I want to be clear about what you’re arguing and not arguing … to be clear, you’re not arguing that the Court somehow has the authority to itself prohibit abortion or that this Court has the authority to order the states to prohibit abortion as I understand it, correct?”

Kavanaugh to Stewart: “And as I understand it, you’re arguing that the Constitution is silent and, therefore, neutral on the question of abortion? In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process? Is that accurate? … [I]f you were to prevail, the states, a majority of states or states still could, and presumably would, continue to freely allow abortion, many states; some states would be able to do that even if you prevail under your view, is that correct?”

Kavanaugh to Rikelman: “I think the other side would say that the core problem here is that the Court has been forced by the position you’re taking … to pick sides on the most contentious social debate in American life and to do so in a situation where they say that the Constitution is neutral on the question of abortion, the text and history, that the Constitution’s neither pro-life nor pro-choice on the question of abortion, and they would say, therefore, it should be left to the people, to the states, or to Congress … and we [the Supreme Court] should be scrupulously neutral on the question … I want to give you a chance to respond to that.”

Kavanaugh to Rikelman: “I want to ask a question about stare decisis … history helps think about stare decisis … and the history of how the Court’s applied stare decisis, and when you really dig into it, the history tells a somewhat different story, I think, than is sometimes assumed. If you think about some of the most important cases, the most consequential cases in this Court’s history, there’s a string of them where the cases overruled precedent. Brown v. Board outlawed separate but equal. Baker versus Carr, which set the stage for one person/one vote. West Coast Hotel, which recognized the states’ authority to regulate business. Miranda versus Arizona, which required police to give warnings when the right to — about the right to remain silent and to have an attorney present to suspects in criminal custody. Lawrence v. Texas, which said that the state may not prohibit same-sex conduct. Mapp versus Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment. Giddeon versus Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell, which recognized a constitutional right to same-sex marriage. In each of those cases…the Court overruled precedent. … So I assume you agree with most, if not all, the cases I listed there, where the Court overruled the precedent. So the question on stare decisis is why, if … we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this Court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and — and not stick with those precedents in the same way that all those other cases didn’t?”

Kavanaugh to Prelogar: “When you have those two interests at stake and both are important, as you acknowledge … why should this Court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this? And there will be different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently. Why is that not the right answer?”

Justice Amy Coney Barrett

Barrett to Stewart: “I have a question … about stare decisis. And I think a lot of the colloquy you’ve had with all of us has been about the benefits of stare decisis, which I don’t think anyone disputes … You know, we have Plessy, Brown. We have Bowers versus Hardwick, to Lawrence. But, in thinking about stare decisis, which is obviously the core of this case, how should we be thinking about it — I mean, Justice Breyer pointed out that in Casey and in some respects, well, it was a different conception of stare decisis insofar as it very explicitly took into account public reaction. Is that a factor that you accept, or are you arguing that we should minimize that factor?. .. [Is there a distinct set of stare decisis considerations applicable to what the Court might decide is a watershed distinction?”

Barrett to Rikelman: “… Petitioner points out that in all 50 states, you can terminate parental rights by relinquishing a child after abortion, and I think the shortest period might have been 48 hours if I’m remembering the data correctly. So it seems to me, seen in that light, both Roe and Casey emphasize the burdens of parenting, and insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy. Why don’t the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden. And so it seems to me that the choice more focused would be between, say, the ability to get an abortion at 23 weeks or the state requiring the woman to go 15, 16 weeks more and then terminate parental rights at the conclusion. Why didn’t you address the safe haven laws and why don’t they matter?”

Barrett to Rikelman: “I don’t understand why 27 weeks is less workable than 24.”

Barrett to Prelogar: “… I asked Ms. Rikelman this question too, but I’m not sure that I fully understand the government’s position or Ms. Rikelman’s position. So, on pages 18 and 19 of your brief, you talk about reliance interests and you quote some of the language from Casey about a woman’s ability to participate in the social and economic life of the nation. And I mentioned the safe haven laws to Ms. Rikelman, and it seems to me I fully understand the reliance interests. There are the airy ones Justice Kagan was referring to and then there are the more specific ones about a woman’s access to abortion as a backup form of birth control in the event that contraception fails so that she need not bear the burdens of pregnancy. But what do you have to say to Petitioners’ argument that those reliance interests do not include the reliance interests of parenting and bringing a child into the world when maybe that’s not the best thing for her family or her career?”

Note: Transcripts obtained via the U.S. Supreme Court website. 

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  1. Stare Decisis basically means that early precedents by the court must be respected, unless there are compelling legal arguments to revisit the case. If a previous decision by a court was based on bad law then it should follow such a decision can be overturned.

  2. Part of what Sotomayor said:

    In his argument with Sotomayor, Stewart said that advancements since Roe have allowed for further knowledge of fetal pain, ultrasound imagery that presents an unborn baby in such a way that appears and is “fully human very early.”

    In part of her response, Sotomayor said that people who are brain-dead can still exhibit signs their nervous system is active and human:

    “There are spontaneous acts by dead brain people. So I don’t think that a response to by a fetus necessarily proves that there’s a sensation of pain or that there’s consciousness,” she said. “There is about 40 percent of [brain-dead] people who if he or she touch their feet, the foot will recoil.

  3. “It seems to me that [viability] doesn’t have anything to do with choice. If it really is an issue about choice, why is 15 weeks not enough time?” (Roberts). If a state [MS] has an interest in preserving life after 15 weeks of pregnancy Roberts’ contention is that viability is not the issue for purveyors of abortion, that it’s rather choice. Abortion advocates are determined to keep the standard for viability set by the Court in Casey [1992] in order to retain abortion as the law of the land. Also, abortionists will argue after viability the prenatal infant presents a burden to the mother. Chief Justice Roberts seems to present the strongest argument against Stare Decisis on abortion rights since it apparently was adjudicated as a burden related to viability rather than an issue of choice, and as Kavanaugh adds it nullifies a legitimate state’s interest. Our Constitution does not address abortion as a choice despite the faux argument by Ms Rikelman that abortion rights are inherent to Liberty [it goes back to Justice Anthony Kennedy’s errant definition of unprincipled Liberty in Casey]. Therefore, the Supreme Court “should be scrupulously neutral” (Kavanaugh). A right to life, a primary natural law principle [including the always unlawful killing of innocent life] are really the basis for prohibiting abortion. As such abortion is a justice issue. Although our bishops’ response is on these lines it will be difficult to convince a divided nation that has jettisoned these principles. Nevertheless, the Justices should refer to these principles in their opinions and strike down Roe v Wade.

    • If the issue is about choice, then in a falsely individualistic culture what choices are there in defining “choice?”

      St. Augustine warns us that real freedom “cannot be reduced to a sense of choice: it is (instead) freedom to act fully. . .” and to resist what he termed “fantastica fornicatio”—the prostitution of the mind to its own fantasies.

      “Truth, what is truth,” said Pilate? How many handwashing Pilates do we still have on the Supreme Court? Hopefully less than five.

  4. I have not been as optimistic as many pro-lifers have over the past year about the ultimate result of this case, but I have to say that the questioning reported here and that I heard yesterday has increased my hopefulness. Kavanaugh as much as says he thinks the whole thing should be completely sent back to the states. Roberts will probably remain a disappointment but if the other five are willing to go big, he doesn’t matter.

  5. Oh, what contortions and hyper focus on minutia legalism. Science has already confirmed that abortion is the intentional killing of a viable human person. (The definition of viability is the ability to grow and mature, so every child in the womb is in that state unless expelled by nature–miscarriage–or aborted by force.). I have a Life article from April 1983 that has on its front cover a child being treated in the womb at six weeks (Surgical Miracles inside the Womb).

    Yet, aside from that what should concern us more are Sotomayer’s inane remarks: Justice Sotomayor referred to the dependence of poor women on abortion, stated that Mississippi’s argument about human life was “a religious view,” criticized Mississippi lawmakers for passing a new abortion law just because there were “new justices on the Supreme Court,” and asked, “how will the Court survive” if people think we decide cases politically. She made the point that abortion was needed when contraception fails.

    Point by point–Science as authored by God is indisputable proof of viable life in the womb. In reference to appointed Supreme Court Justices and “politicalizing”–who has done this more than the regressive radicals on the Supreme Court over the last many decades, legislating from the bench? We intentionally elected persons to empower the Truth to finally be revealed through the justice system. To the point about needing abortion when contraception fails, does acknowledge that contraception is in itself anti life. One can now even argue that life is expelled through its use. Still, conscience of the user is necessary as forbidding it cannot be reasonably enforced. Finally, most tragic is that we have persons has high as the country’s Supreme Court who think it their “duty” to ensure that people can kill others based for presumed psychological and economical reasons. Yet, anyone with eyes to see knows that this has not resulted in health…in any domain.

  6. A Pathetic Political Argument on Dobbs from Breyer, Sotomayor, and Kagan
    December 2, 2021 10:57 AM

    In effect, this set the stage for CFR deep State member Justice Breyer’s main argument, which boiled down to this: If the Supreme Court now overturns Roe and Casey, the decision would be viewed by the American people as bowing to political pressure and would thus severely damage the legitimacy of the Supreme Court.

    The CFR packed SCOTUS is guilty of changing the definition of liberty using their abortion decision.

    Council on Foreign Relations CFR member Republican Sandra Day O’Conner helped the CFR achieve this result in the Planned Parenthood vs Casey, SCOTUS 5-4 decision, in June of 1992. Sandra Day O’Conner and republican justices Anthony Kennedy, and David Souter provided decisive swing votes to uphold Roe Vs. Wade. Their decision upholding the right to abortion stated: “At the heart of liberty is the right to define one’s own concept of existence, of the universe, and of the mystery of human life.

    This statement redefines liberty. It suggests there is no universal or absolute set of moral principles by which liberty is bound and we can do anything How can our Creator have created us equal if we have the liberty to define ourselves as better than our neighbors? If O’Conner’s, Kennedy’s and Souter’s liberty were the liberty defended by the Declaration, we could never have formed a society at all.

    Americans should be stunned that sociopathic atheistic scum like CFR members Ginsberg, O’Conner, Breyer and Gorsuch have been made SCOTUS justices.

    CFR deep state SCOTUS Justice Breyer a key player in helping to destroy the US constitution — what Breyer stands for:

    On a string of hot-button issues, regarding the death penalty, abortion, pandemic restrictions and other controversies, Breyer and Justices Sonia Sotomayor and Elena Kagan find themselves in perpetual dissent.

    That is they are pro-abortion, anti-death penalty, pro-pandemic restrictions.

    In his objection Thursday from the decision to end an eviction moratorium put in place by the Centers for Disease Control and Prevention, Breyer said the majority was abandoning its usual procedures.

    And those usual procedures are to undermine the US constitution and considering it a useless document that they are free to overrule. The constitution is founded on natural law. CFR Breyer believes the laws of man should be able to overrule the laws of God,

    “These questions call for considered decision making, informed by full briefing and argument. Their answers impact the health of millions,” Breyer wrote. “We should not set aside the CDC’s eviction moratorium in this summary proceeding.” Yes they should the CDC is not even a government organization and should not be making laws.

    CFR member Breyer is wrong the questions call for considering whether they are constitutional or non-constitutional period.

  7. Good News and Bad News (as I see it)

    1. It will NOT be the Pro-Life Moral Doctrine taught by the Catholic Church that will be the basis for the Supreme Court’s new Conservative majority to overturn Roe vs. Wade.

    2. Rather, the basis will be the legal interpretation doctrines of Originalism and Strict Constructionism.

    3. As such, for Catholics, I see this as a case of Good News and Bad News.

    4. First the Good News: According to the doctrines of Originalism and Strict Constructionism, Roe vs. Wade must be overturned since the Constitution nowhere states a right to abortion, and since the original drafters and promoters of the Constitution did not imagine that the Constitution contained, explicitly or implicitly, a right to abortion. Under the doctrines of Originalism and Strict Constructionism, the only way to get a federal right to abortion would be to amend the Constitution.

    5. Now the Bad News (for me, and probably some other Catholics who accept and believe in the Church’s Social Moral Teachings): The Supreme Court’s new Conservative majority will also overturn the earlier Court decisions that found the following programs to be constitutional: Social Security, Medicare, Obamacare, Federal Minimum Wage Laws, Federal Child Labor Laws, Federal Labor Union Laws, Federal Overtime Pay Laws, Federal Laws Against Racial Discrimination in Housing. Under the doctrines of Originalism and Strict Constructionism, none of these federal laws are constitutional. Justice Antonin Scalia in his lifetime said this many times, as have many other judges and legal scholars who subscribe to Originalism and Strict Constructionism.

    6. In 1931, Pope Pius XI published an encyclical titled “On Reconstruction of the Social Order.” FDR praised the encyclical and quoted it extensively. Certainly, since 1931, in the USA and Europe, the “social order” has substantially been “reconstructed” for the increased well-being of people who support themselves and their families by selling their labor. But now all that “reconstruction” of the “social order” is going to be swept away by the new Conservative majority on the Supreme Court.

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