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.
[…]
Pope Francis says “homosexuality is a sin” but is pushing its legalization?
Pope Francis keeps allowing one James Martin to seduce him into these ideas?
Pope Francis and James Martin have a merit to hide who else is involved?
Pope Francis equates buggery with “sexual intercourse outside marriage”?
Pope Francis wants to make this into a “Magisterium” and into acts of piety?
The “conversational tone” of an interview makes up for what really should be taught but isn’t?
Pope Francis says if you do not join in you are Pelagian and/or Jansenist?
Pope Francis calls this clarification? …. when …. James Martin asked for it?
James Martin merits this welcome and specific clarification, but not the four cardinals who authored the dubia?
I think there’s an abiding ambiguity in the Pope’s thinking on the relationship between sin and culpability. According to the Church, my lack of full knowledge or deliberate consent may mitigate or nullify my culpability for an objectively disordered act, but this does not mean that the act is permissible for me even in a qualified or provisional sense, even for the sake of avoiding a greater evil.
Pope Francis suggests just the opposite in his response to the Argentine Bishops’ Letter, which argues I could discern that it is not presently possible for me to avoid sex outside marriage if to do so would lead to a greater sin, though it may become possible in the future with the help of grace. The issue here is not really a lack of full knowledge or deliberate consent. On the contrary, I have deliberated on my options, and have decided that it is necessary for me to consent to sex outside marriage in order to avoid some consequence that I judge to be a greater evil (e.g., subjecting my children to divorce, etc).
This is not the Church’s teaching. It is consequentialism with a smiling face. No matter how difficult my present circumstances may be, I can keep God’s law with the help of His grace. To say otherwise is not Christian mercy, but moral determinism. It is to strip us of agency and dignity, to deny the share Christ gives us in the victory of the Cross.
All this, of course, is old news, but it makes it difficult for me to take the Pope’s much-welcome correction of James Martin at face value. Francis tends to stretch the Church’s teaching on mitigated culpability from something like a distinction between degrees of murder to a distinction between murder and self-defense. If it is sometimes impossible for divorced and remarried couples to avoid sex outside marriage, and if we must treat all sexual sins alike, could it sometimes be impossible for gay couples too? If so, what is the point of re-affirming that homosexual acts are always sins?
“…of course, one must also consider the circumstances, which may decrease or eliminate fault.”
Yes, in individual cases, but from this will James Martin now manufacture the endorsement he needs to proclaim that LGBTQ as a category (!) is exempt from the natural law, the dubia and the Magisterium’s Veritatis Splendor?
What would such an endorsement mean when, instead, the homosexual tendency is triggered or locked in by early sexual abuse, by random sexual experimentation, by the trauma of absentee or abusive fathers, by cultural victimization? Ought the Church to truly affirm the victim persons and call for confronting and healing the entire package of such background abuses–at, say, the “aggregated, compiled and synthesized” Synod on Synodality? Fat chance. But perhaps James Martin will supply Cardinals Hollerich and Radcliffe with the needed wording!
But then there’s also the science–a literature review, plus the lab finding of a few genome “markers” of little explanatory value, and no gay gene:
One recent STUDY in the mix is a review of two hundred peer-reviewed studies on sexual orientation and gender identity. The conclusion: gender identity is not an innate, fixed property of human beings independent of biological sex (Mayer/McHugh, The New Atlantis: A Journal of Technology and Society, Ethics and Public Policy Center, No. 50, Fall 2016).
Other GENOME RESEARCH points to some genetic markers—it does not find a gay gene— and concludes that these markers do not account for same-sex behavior. https://news.yahoo.com/no-gay-gene-study-finds-180220669.html
Well to have clarified his remarks, although Pope Francis apparently doesn’t distinguish between sexual sins in the natural order, and those moral injustices that are a form of hostility to the natural order. Such are homosexual sins. Why the difference?
God ordained human sexual behavior exclusive to a man and woman. The sin then offends God as a sin outside marriage, and a sin against natural law. Also, the common opinion of late is that the predilection toward same sex is not sinful described as such ‘attraction’. The error in this while it’s apparently true that some have a deep seated same sex attraction that of itself may not be sinful -similarly, the historical evidence shows homosexuality behavior can be an acquired sexual dysfunction.
Francis clouds this distinction. That leads many to assume a form of liceity in that sodomy is no less grievous than natural sexual activity between a man and woman, adding to the willingness to engage in unnatural sex. As well as the Pontiff’s frequent admonition, this is how God made you, he loves you as you are. Hearing this from a pontiff weakens resistance to homosexuality, often for some encourages it.
Well said! The pope’s comment was rather shocking. As we read in scripture God condemns homosexuality which is an abomination to Him and for the pope to suggest that those who choose to disobey God should be given any consideration is wrong and speaks volume for a person in his position.
I could just imagine all the heads exploding in “America” offices all over the land as they hear Pope Francis saying that homosexuality is a SIN.
“He can’t say that!” they all cried out at once. James Martin swooned and had to be helped to the nearest fainting couch.
“We need to get him to issue a clarification right away” all the world’s Jesuits screamed in unison. “No one can know that homosexuality is sinful in any respect! We must have full papal approval of homosexuality, at least in the public mind!”
And so, Pope Francis did what he was told.
Pope Francis says “of course, one must also consider the circumstances which may decrease or eliminate fault.” The catechism, however, clearly states that homosexual acts “under no circumstances can they be approved.” The catechism makes things clear, the pope’s statement does not. Some could claim that love for a same sex partner eliminates the moral fault of homosexual acts,
Agreed. I posted a rather over-longish comment about this above.
Pax
Rene, this conflated concept of mitigation is the lever used in Amoris Laetitia to neutralize intrinsically evil acts. John Paul II warned not to make mitigation [in Amoris as you correctly note mitigating circumstances] a category, as a classification of moral acts. Grace is what’s absent in Ch 8 Amoris Laetitia, a surreptitious omission. When the Apostle Paul complained of Satan’s thorn in his side [Aquinas considered Paul’s affliction a moral temptation] Our Lord answered him, ‘My grace is sufficient. My power is perfected in weakness’.
Dear, dear Francis,
I stopped listening to anything you say or write a long, long time ago. Issue an encyclical or make pronouncements ex cathedra on a matter of faith and moral and then I’ll listen and obey. But your day to day remarks are not only confusing but you’re forever contradicting yourself.
Absolutely! Thank God that Francis hasn’t made any doctrinal ex cathedra edicts and pray that he doesn’t.
Up against the abyss, Pope Francis?
The Holy Spirit protects the Deposit of Faith.
I am deeply concerned over this pontiff and his comments.
I wish there was a way, outside of prayer, that we can address our concerns in a spirit of filial love and correction to this Holy Father, similar to St Paul’s rebuke of St Peter, or that of an adult son to his elderly father.
An interesting, albeit sad,turn of events. James Martin left his two audiences with Francis feeling encouraged and supported, probably due to his sense that the pontiff was on his side. But this is just another example of Francis doublespeak. Homosexual acts are sin. The church has taught this for centuries. There really is no need for clarification. Martin needs to either repent or be laicized.
I vote for laicization, as repentance seems to be off the table.
Last time I checked (okay, I never did, but still) mixing ammonia and bleach is not a crime, or even a sin as far as I know, but it is still an incredibly stupid thing to do, and carries with it the possibility of very, very scary breathing difficulties, if not death.
.
Maybe sodomy should be looked at that way. Not a crime, but incredibly stupid and harmful on many, many levels. Not something that can ever be approved of and should always and everywhere be discouraged–including in marriage–an institution that is exclusively between and man and woman.
A sound and sensible take on the issue.
These are not equal comparisons as mixing bleach & ammonia are not known from research or millenia of human experience to be a “dysfunctional behavior against Natural Law” – as IS sodomy and all homosexual sexual behaviors. The ramifications of homosexual sexual behaviors are immediately harmful both naturally & eternally to the people involved, and the consequences of harm and destruction from even one encounter can expand like an algae bloom in summer, and from the common on-going behavior (“gay culture”) explode with far-reaching and forever consequences like the radiation from nuclear explosion/melt-down.
A very good analogy there, the mixing of ammonia and bleach. Unfortunately, with sodomy some have apparently to learn the hard way or, worse yet, never do.
As soon as you read “Pope Francis clarifies comments” you know it is safe to stop reading.
You got it!
I get your point and agree in part. However, I’m not sure it’s ever safe. He is rather like the old uncle or grandpa who keeps coming to family reunions and embarrasses (almost) everyone with his inappropriate comments and behavior. It’s egregious stuff, but nobody seems to be able to stop him. So he keeps roiling things up and fouling the air until, finally, he falls asleep in a rocking chair. Then, then we have a moment of peace and sanity.
God said homosexuality is a sin both in the old and new testament LONG before any pope meekly mentioned it. It’s really sad that you all rely on a catechism made up by sinful men that doesn’t correspond exactly to God’s word. The world is watching as the Catholic church crumbles before their very eyes.
The Old and New Testaments were written by sinful men.
Inspired by the Holy Spirit
Still sinful (the men, that is).
Sinful men under the inspiration of the Holy Spirit so God’s word that the Catholic Church took liberty with and altered it to suit their purpose.
The Pope is implying the realities of voluntary and involuntary homosexuality. The former are sinful and the latter possibly not, as especially when in youth under non-cognitive exploration, a person discovers sexual response though no one taught him nor did one learn it from a source (i.e. ‘it just happened’). If one does not know, then culpability is indeed mitigated. But the one who has already gained full knowledge of disorder (has taken the eternal curriculum of heterosexuality and chastity) and acts out still, ‘will be severely beaten’, in consequence.
Dr/Fr Ripperger has covered this area called ‘involuntary vice’. But someone should write an entire book on this topic, because the tendency of the creature who has already voluntarily or involuntarily wired or configured his body to same-sex attraction (or any other disordered intoxication) preference, searches for every cognitive instance that will legitimize his configuration, to make licit the acting out in the preference. Addicts and compulsives do the same gymnastic of malaprop ‘understanding’ of commentary.
The pope is plying mercy to these vast grey areas, but unawake sinners/the misconfigured accept only what conforms to intoxication preference. Scripture often gets misinterpreted in the same way, in a twilight before facing the fact of disorder.
It is a very complicated area, arriving at actual moral culpability, because inner physical/psychological adolescent maturation often lacks guidance and occurs in total secrecy, and gets ‘locked’ into disordered patterns before cognition, reason or knowledge can undo them.
Conversion is a slow awakening to what got misconfigured, how it should have been configured, and where to get the desire to desist the old and find a home in the new: to change, to be reconfigured: redemption. For many it will take a lifetime of struggle to overcome the Beast who wants to gain the interior permanent upper hand. Which many do not want to make since the misconfiguration is not their fault and because there is deep unfortunate attachment to the intoxication preference.
These are some things the Pope could share with the press, which would have the impossible(!) effect of awakening, remorse, shock, release, amazement, understanding. That’s my prayer. Speak actual truth from the inner world of the sufferer, so he can come to freedom.
Very sad and disappointing that the Holy Father was so quick to clarify his comments in response to the inquiry of Fr. Martin; yet… 4 Cardinals of the Church asked for clarification of the Holy Fathers writings over 6 years ago (the dubia) and these have still not been addressed.
The lackadaisical “clarification” only compounded confusion about what constitutes a sin by persons experiencing same sex attraction. Sexual misbehavior is often a mortal sin, particularly such acts between persons of the same sex. While there are always mitigating circumstances, and only God can judge any particular soul, the Church should always strive to emphasize the “narrow gate” and that obstinate ignorance is not an excuse. Moreover, this would have been a most opportune occasion to strengthen the understanding of what is a God recognized marriage and Holy Matrimony. Instead we received a nuanced response from the Pope that “sex outside marriage” is a sin without soul saving instruction on either. Is there any wonder that Biden and Co Catholics may really believe that same sex “marriage” and funded abortion is supported by the Church?
Pope Francis said the homosexual act is not a crime. Well in some Muslim countries it is a crime.