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 woke and female Elizabeth Warren has transitioned into the male justices Hathorne, Sewall and Stoughton of Salem witch-trial days, who kicked off the 1692 festivities by hanging the first victims–based on accusations from an earlier Elizabeth (Elizabeth Booth).
By targeting pro-life centers, is today’s Elizabeth channeling the earlier Elizabeth?
I sent a $500 donation to one of our local pregnancy protection centers along with a letter to Sen. Elizabeth Warren decrying her support for violence against any such facility, asking them to put an acknowledgement of my donation in the stamped envelope with my letter and mail it to her. Then, I thought, “oh maybe I just put a target on this center.” However, on further reflection, I think I may have saved this center from vandalism or worse, because if they get attacked, the police will be notified where to begin their investigation.
Good for you & God bless you.
Whitmer (MI) just vetoed a budget bill, or line itemed it or something for 20 mill in aid to pregnancy centers etc… for adoption aid – said they pretend to be fake health centers
The plague of political correctness tries to sweep away common sense and decency.
Psalm 139:13-16 For you formed my inward parts; you knitted me together in my mother’s womb. I praise you, for I am fearfully and wonderfully made. Wonderful are your works; my soul knows it very well. My frame was not hidden from you, when I was being made in secret, intricately woven in the depths of the earth. Your eyes saw my unformed substance; in your book were written, every one of them, the days that were formed for me, when as yet there was none of them.
Proverbs 24:11-12 Rescue those who are being taken away to death; hold back those who are stumbling to the slaughter. If you say, “Behold, we did not know this,” does not he who weighs the heart perceive it? Does not he who keeps watch over your soul know it, and will he not repay man according to his work?
Matthew 18:14 So it is not the will of my Father who is in heaven that one of these little ones should perish.
Exodus 21:22-25 “When men strive together and hit a pregnant woman, so that her children come out, but there is no harm, the one who hit her shall surely be fined, as the woman’s husband shall impose on him, and he shall pay as the judges determine. But if there is harm, then you shall pay life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe.
Deuteronomy 27:25 “‘Cursed be anyone who takes a bribe to shed innocent blood.’ And all the people shall say, ‘Amen.’
Exodus 20:13 “You shall not murder.
And so it goes.
Liz Warren is a dispicable human being. She never stops lying, even when her lies are made public. The article should have included President Trump’s calling her out as Pocahontas, a well deserved derisive term for her lying nature.
She and others who hate Crisis Pregnancy centers prove that they are not “pro-choice”. They are pro abortion only.
good point
I wish feticide promoters who employ engineered euphemisms & spread medical misinformation to misguide us could be held accountable in some way. That goes for euthanasia proponents also.
If we all used the correct medical terminology, ok. But neither side does & the population controllers & abortionists only use that language selectively to their advantage. When laypeople use non-medical terminology, they want to sue us. Seriously…
🙁
Dear Mrscracker:
Yes and yes and yet, it is not he end of the matter. We hope people repent and change their ways, yet God is a righteous judge.
1 Thessalonians 5:11 Therefore encourage one another and build one another up, just as you are doing.
Romans 14:12 So then each of us will give an account of himself to God.
Proverbs 21:2 Every way of a man is right in his own eyes, but the Lord weighs the heart.
God bless you and thanks,
Brian
Completely agree. She is a reprehensible woke totalitarian.
We may be reluctant to publicly acknowledge in the post-modern world the clear Scriptural truth that the devil exists and has sons and daughters actively at work (Matthew 13,38; John 8,44; 1John 3,10). Certainly acknowledging this truth shouldn’t make us self-righteous. But for the grace of God there go I as another reprehensible woke totalitarian.
Well, the Kansas vote on abortion yesterday just shows the majority of American want abortion rights. The overturning of Roe v. Wade was undemocratic just like the way our Electoral College enables at times a loser in the actual number of votes get the White House like Trump in 2016. The way we, a minority of us Catholics, (the majority of Catholics) want to impose our belief and view on abortion on the rest of Americans who do not agree with us on this makes the Church look not any different from the Taliban or those Muslim societies and countries imposing sharia laws even on non-Muslims.
Other than demonstrating absolutely no understanding of the republican/federalist form of government in the U.S., or of the three branches of government, or the nature of the judicial branch, or the numerous reasons (scientific, moral, biological, ontological, theological, etc) that anyone (not just Catholics) rightly opposed abortion, or what “Dobbs” actually did and didn’t do, or the radical differences between natural law and sharia law, your comment holds together brilliantly.
You venture to compare universal natural law morality (as recognized by Catholic moral theology) with Sharia Law. Actually, a fascinating topic…I mean the partial overlap, together with the glaring contradictions. The following is offered as a footnote to Olson’s splendid remark…
So, let’s take Muhammad himself on the timely issue of (female) infanticide, as now part of the Democratic platform to be codified and federally funded by presidential fatwa. Muhammad, in contrast, opposed the pagan culture of his own day, including the live burial of unwanted female babies.
On this point, historian De Lacy O’Leary cites the Qur’an: Q 6:141, 152; Q 16:60-1, and Q 17:31-33; see also Q 81:3 (“Arabia Before Muhammad,” 1927). In two other extended accounts, Mohammed is reduced to tears when hearing of such live burials. Mohammed’s response to the guilty father is actually recorded (I think in the Hadiths): “Sons and daughters are both gifts of God, the Prophet reminded him. Both are equally gifts, and so they should always be treated equally” (Jean Sassoon, Princess Sultana’s Daughters, 1994).
Thank you for sharing that, Mr. Beaulieu. That was very interesting.
Some interesting reflections, Peter, but note that more and more brave historians are coming forward with increasingly compelling evidence that casts a very skeptical light on the claimed existence and history of the so-called Prophet of Islam known as Muhammad. If you and others are interested in exploring further what may be the greatest fraud ever imposed on the world, I recommend starting with Robert Spencer’s revised “Did Muhammad Exist?” (2021) that puts together in one book many of the findings of honest historians who have properly questioned all of Islam’s foundational claims based on historical facts quite embarrassing to the overall Islamic narrative.
As for the Quran itself, there now appears to be some 30-plus different versions, not just different language interpretations, that have led to many former Muslims (including some Imams and other leaders) to abandon Islam since one of its biggest lies over the years has been that there is only One Quran on Earth that faithfully reproduces the Heavenly Quran. With this in mind, and given the barbarism of the one called Muhammad the Prophet, there really isn’t much wisdom one can gain from whichever version of the Quran one chooses to cite.
Robert Spencer’s perspective on Islam goes beyond informative, as does Daniel Pipes. it has been my experience that muslims embracing christianity are some of the best attesters for Jesus Christ. They know the truth and the truth has set them free.
We who believe should be constant ambassadors for the mercy of God.
Ephesians 2:4-5 But God, being rich in mercy, because of the great love with which he loved us, even when we were dead in our trespasses, made us alive together with Christ—by grace you have been saved—
James 2:13 For judgment is without mercy to one who has shown no mercy. Mercy triumphs over judgment.
Luke 6:36 Be merciful, even as your Father is merciful.
Psalm 86:5 For you, O Lord, are good and forgiving, abounding in steadfast love to all who call upon you.
Thank you and God bless you.
You obviously need a refresher course on American government and basic ethics. Pick up a copy of the Federalist Papers (assuming it doesn’t burn your hands) and read Hamilton’s explanation of the electoral college. Overturning Roe was a legally correct and necessary decision, as the majority opinion indicates. You might want to take time to be informed before posting your comments. That’s asking a lot from a progressive, I know, but give truth a try. You might find it liberating.
It is clear that Trump lives rent free in your head. Have you learnt nothing from the past two years? My body my choice showed.the.pro choice lobby up for the sad sacks they really are, since they were the first to cheer the state on with mandatory vaccination. No Catholic worth their salt seeks to impose anything, we believe in free will and we also believe we have a duty to help others avoid damnation. For many of us the deliberate destruction of a baby is the closest thing to hell on earth and we cannot in all conscience remain silent just because some.people cannot bear hearing the horrible violent truth about abortion.
You know S. Adelia, there is no natural right to a violation of human rights as in the case of feticide.
I’m barely old enough to remember folks fighting for the right to segregate. My parents remembered US states fighting for the right to involuntarily sterilize the “unfit.” And going back further our ancestors remember the commotion over the right to own slaves.
Those are all human rights & civil rights matters, not strictly religious ones.
When, pray tell, did your life on earth begin?
Enlightening. Obviously, you’re taking the leftist incoherence about how this country is organized and founded to heart. By the way, the Supreme Court is supposed to decide on the basis of the Constitution and not Kagan’s “public confidence.”
During my years as a pro-life atheist, active in political lobbying for pro-life legislation, exactly what religion was I trying to “impose” on anyone?
Satan is alive and well in the hearts and souls of American politicians from Warren to Trump. Voting is always choosing the lesser of evils. Pray for their deliverance, conversion, and salvation. But don’t be fooled; very few politicians are on the narrow road, if any.
Why compare Warren to Trump in your comment. Trump appointed the Justices that overturned Roe. While Trump has his issues, he by far has a higher moral sense then the Catholic Kennedy’s, LBJ, Clinton and BHO. Warren and her ilk set a new standard for evil American politicians.