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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When Haley gets trounced in South Carolina- the State where she was governor – she will finally be consigned to the dustbin of history and seen as the fraud she was and the tool of the Wokes in the Republican Party.
But she will have served the unintended purpose of making Donald Trump a hero in the eyes of that many more voters who hadn’t totally lost their minds.
Trump owns the GOP. The religious right regards him as some sort of messianic figure, which is laughable but strangely true. The Republican Party has become a cult, much like the Peoples Temple with their very own Rev. Jim Jones.
The old guard Republicans like Mitt Romney and Liz Cheney are gone, replaced by sycophants who are almost robotic in their devotion to Trump. It’s bizarre how the GOP has become a personality cult like North Korea.
I don’t disagree. But the exact same thing could be said, say, for the Democrats and Obama, who was undeniably viewed as a sort of messianic figure (“which is laughable but strangely true”). Further, it could be argued, I think, that this messianic aspect has long been more pronounced in the Democrat party (FDR, anyone? JFK, anyone? Bill Clinton, anyone?). Meanwhile, that same party is surely controlled and populated by sycophants who are entirely robotic in their devotion to abortion, homosexuality, and transgenderism. So, certainly, keep on beating on the “Trump is X, Y, Z” drum, but bear in mind that the real problem is not This Party or That Party, but what has become the basic American approach to politics.
Let’s not assume that because a voter supports Trump that he’s looking for a messianic figure. I have but one Messiah. He alone is the Christ. I have no illusions about the foibles of candidate Trump or anyone else for that matter. If a candidate promises to go after Deep State and dismantle it, he or she will get my vote every time. The same goes for those political pundits online who call out Deep State. They get the most traffic on their sites. The problem as I see it is out of control bureaucracies that conspire to tred on the inalienable rights of the citizenry.
I have voted for both Democrats and Republicans. I do not regard either of them as messiahs. Indeed, the best thing that can be said about Joe Biden is perhaps (not certain) he might be the classic “lesser of two evils.”
Perhaps we need to be a little cynical about politicians, you are correct,the Democratic Party is too beholden to gays, transgenders, abortion, etc. unfortunately, that is where they get much of their funding. The Republicans have been a little too welcoming to white supremacists, Neo fascists and others who do not deserve respect.
I wish that I had an answer, but our politics are a mess and neither party really represents the vast majority of the people. So, we are forced to hold our nose and vote for the lesser of two evils.
Name a single white supremacist or neo-fascist for whom the Republican Party has ever “welcomed”. Just one single individual in any town, state, or public forum. Just one. Are you even aware of the hard core left-wing reality of fascism, or do you simply accept left-wing projections of their own evil, reinforced by a subservient media and academia?
Will, go forward and vote once more for your abortion-loving Biden.
“The republican party has become a cult”???? LOLOLOL!!!Thats just hysterical. Meanwhile, by my observation, it is the democrats and the left who are attempting to impose DEI, have tacitly approved anti-semitism in our colleges to witless students,have tried to eliminate the use of gas stoves and gasoline cars by average citizens, and allowed open borders to a flow of burdensome illegals who threaten to collapse our cities one by one under the financial burden they represent. In Bidens US, illegals come first. To the point of recently forcing NYC high school students to vacate their school so it could be used to house illegals who dont belong here in the first place. What about those crickets you hear from the Dems about the problem of more than 100,000 annual American fentanyl deaths and the sex trafficking which accompanies the wide open border? What about the needs of veterans and American poor in Chicago who are forced to the end of the line for services being prioritized for illegals. The bogus ploy of blaming republicans for this problem of illegals is an outright lie, since Trump managed to greatly reduce the problem while in office and in the face of DEM opposition who refused to fund the wall. BIDEN rescinded those rules and STOPPED building the wall on his FIRST DAY IN OFFICE. Every fentanyl death, every sex trafficked child, every homeless American denied services, every poor American aced out of a job in favor of an illegal has Biden and the dem party to thank. The blood is on their hands. It is a FACT that life was better when Republicans were in charge. Trump put AMERICANS first, as should every US President who is not bought and sold to the globalists or on a chinese payroll. And finally, it is always LEFTISTS Who feel a need to delete history and tear down statues and change history to suit their own new narrative. And to destroy those who refuse to go along. Think Hitler, Stalin, Mao. And , under WHOSE influence was the statue of Teddy Roosevelt removed from the Museum of Natural History for being “offensive”??? Average Dem voters should think long and hard about how their personal vote has damaged the country, our history and our national security and suppressed the freedoms we have been able to have—until now. Oh honey, if you think the Republicans are a cult, I have a bridge in Brooklyn to sell you.
I seem to have hit a nerve. Quite a parade of right wing claptrap.
Log. Splinter. Eye. Etc.
Most of the posters seem to think that Trump should be canonized. Really?
The polarization and extremism on both ends of the political spectrum predates Trump by decades. Trump, in many ways, is only possible because of what the radical Dems (known now simply as “Democrats”) were doing for many, many years. That’s not a pro-Trump statement, but simply a fact. If Trump didn’t exist, he would have to be created, because the Bushes, Doles, and Romneys of the world proved that they were not going to ever doing anything to push back in any real sense.
Clap trap?? REALLY? Please provide any facts or proof of which item I mentioned is untrue. I won’t hold my breath. Leftists always limit their bomb-throwing to accusations or innuendo. They never HAVE any facts. Its too bad that so many Americans are gullible enough that they are sucked in by such tactics.
Will,
Is it that all “claptrap” is equal, but that some claptrap is more equal than others?
My own view of broad-band claptrap is shaped by the Spring of 2020 in Seattle when protesters seized several blocks of central Seattle for several weeks, even occupying a police precinct station. Fire and emergency aid trucks were unable to break through and there was at least one shooting, and a few deaths. https://en.wikipedia.org/wiki/Capitol_Hill_Occupied_Protest
During the first morning in Seattle, the ultra-liberal mayor was heard over the radio likening the insurrection to a “block party” and appealing to the mobbed client group: “We gave you free college education; what more do you want?!” (a reference to free junior college in Seattle for all high school graduates, except those from Catholic schools).
Our Entitlements culture? And worse? A microcosm of the Liberal mindset as at least half of our national polarization?
In several liberal-mayor cities all hell broke loose in the Spring and Summer prior to January 6, 2021 in DC. My QUESTION is this: without these media-splashed precedents in liberal-mayor America, would January 6 even have been thinkable? As Congress then began its investigation of meltdown America, Speaker Pelosi ruled-out a broad-angle vision on the big picture and, instead, isolated January 6 for deserved but narrow-band attention.
Regarding candidate personalities, however, I do largely agree that what’s left of our Nation is faced with the choice—as Russell Crowe explained in “Master and Commander”—between “the lesser of two weevils.”
So you don’t like claptrap? Why not take the trapdoor out? Cannot find it? Try glasses. Watch for the twinkle of sense and glimmer from God above. Read Aquinas and grow.
Will, please. The anti-religious left embodies a robotic cult-like faith in inevitable progress and demands that every depraved idiocy they present as a “new idea”, leading to a greater liberations of humanity, for their betterment, thanks to their presumed superior insights. So presumptuously superior they believe themselves to be, every opponent to their elitist conceits becomes a target of unrelenting mendacious propaganda until all domains of human culture are forced into submissiveness, a tyrannical drama that has demonstrated original sin on a large scale for thousands of years. Trump, an anti-elitist and threat to their conceits, is currently a convenient target. For the religious left, evil is not personal. It is not sin. Leftists cannot conceive of the thought of their own sins. So they demand that everyone accept schemes of eliminating evil from the human condition through social engineering, not through religion. And many religious pretenders there are, who are robotically willing to side with them and join their cult.
The old GOP was not a really party of the working class and that’s what’s changed. The Establishment GOP is trying to hold on with a death grip but voters just aren’t buying it.
Party of the working class? They still push for more tax cuts for the rich. Oh, they beat up immigrants and gays to placate the populist right, but the primary goal is tax cuts for the rich.
The populist right gets bamboozled again and again by the GOP. The GOP is clever. Rant about transgenders, gays and immigrants, but be sure to cut taxes for the rich before anything else.
The culture wars are a bright, shiney object meant to distract the working class from the fact that their pockets are getting picked by the billionaires. So go ahead, rant about transgenders and Confederate statues and other distractions, but see how wages have stagnated fir 40 years and billionaires continue to get richer and richer. You fell for the big con.
“You fell for the big con.” And you have not?!?!? How do you not see both sides of a bigger picture? How old are you? Are you a Catholic?, Pro-life?, Believer in the Real Presence??
In three paragraphs you repeat the propaganda, five times, contrived to exploit hatred and¬ economic illiteracy regarding roll backs of unconstitutional confiscatory government taxation of employers and investors as “tax cuts for the rich” whenever those who already pay most of the taxes are not excluded from tax cuts for everyone.
Those who the willfully ignorant malign and slander as “the rich” ignore that they pay most of the taxes, but in the thought of amoral Marxist banditry this is never enough, even while it forces numerous businesses into bankruptcy. The slothful always conceive of employers as among “the rich”, even when the middle class and lower middle class who are employed by business and invest in them, along side “the rich”, are economically damaged as well by ever expanding economically crippling government tyranny.
Yawn. Nice DNC talking points. At least Republicans aren’t the ones grooming kids in our public schools, for one example.
Working class people understand there are more important things than money. And they understand disrespect and spin whether it comes from Democrats or the Establishment GOP.
With Trump one need separate the narcissism, bluster, insults from the incredible effectiveness in getting the job done as it should be. Our alternative is the continued corruption of America’s morals, life under antiChristian fascist despotism, death of a constitutional republic.
Furthermore while the incumbent is a disjointed bore, Trump is at least entertaining.
St. Donald of Mar A Lago, pray for us….Amen. “Incredible effectiveness?” In your own words you confirm the cult like status of the GOP.
Obviously, you’re a pro-abort. Were you not, you would not have allowed your thought to be so willfully ignorant of the simple reality that it does not require a deification of a personality to recognize the indisputable facts that the actions of Donald Trump, in court appointments, and fiscal appropriations, both domestic and foreign, including extensive reapportionments of existing expenditures, had the effect of saving more lives than the actions of any individual in human history. It requires moral cowardice to allow one’s self to be manipulated by the constant drumbeat of disinformation that characterizes Marxist pro-abortion legislation as child welfare legislation and moral opposition to them as “attacks against the poor.”
Trump is entertaining for a fact. So is Boris Johnson.
US politics are very changeable but some objective perspectives, from a non-US friendly observer, that will sustainably lend some balance, can be offered and be put in order.
The Democrat party has become one thing very exclusive and fixed; change here is for all practical purposes, not happening in time for the election or any time soon thereafter.
They feel both justified and adamant about this because it “represents” what they would say is “the great majority” and “the nation’s best interests”. Maybe they mean “the best majority”.
An earlier vision the Democrats would have had in its most ideal form, would have many laudable just aspects; however, these do not stand any chance with the party the way it is now.
Overlaying and inter-penetrating everything with the Democrats is the entrenched socialized policy of death-dealing in general along with abortion in particular; and inculturating of anarchism.
They are shielding death activists and anarchists.
Change-ups are possible in the Republican circuits and this party offers possibilities for representing many sides effectively. Can it make this into an good reality?
Trump’s public presentations set up instability. He conciliates homosexualitas privately at Mar-a-Lago but he can throw away Haley and dump on McEnany, at the drop of a hat, in public.
Trump had earlier ruled out Christie and got Pence as VP. Pence brought down the House in one fell swoop. Christie has now decided that homosexualistas are his group buds, just like Trump’s.
Some will thus always have an advantage with Trump knowing when to bow in or act and others will always be suffering slights and setbacks still not seeing where the blows will come next.
He wants to be credited with vanishing the Roe bogeyman but the result so far is that States rights have been confirmed yet still with no criminality on abortion -not even mentioned in Dobbs.
Not normal.
Kellyanne Conway is a formidable politician yet Trump has only ONE like her -her. What does he do? He attacks her husband.
There are many formidable politicians like her, men and women; but they are dumbed down among the Republicans. So it seems as very obvious. Glaring.
Conway is not pro-life but she excelled under Trump. If there is to be a true pro-life agenda these types of men and women must be pro-life and they must populate everything.
The ones I am talking about are pro-life and they come in great numbers. Where are they?
It’s true that it might not be possible to codify abortion into a federal law. At least not right now. But so what? What are you waiting for, for them to codify abortion!
In general, huge chunks of US policy are how they go because of a for-profit military complex, enormous debts, a monopolistic federal reserve structure, an established abortion complex. Etc.
Abortionistas.
And according to President Biden, because everyone should be Zionists. Zionistas.
Republican consensus of the recent past hasn’t proven to be CONSISTENT, even under President Trump. Or, there is some formidable consensus but even Trump ends up squandering it.
It could be he gets into such a dizzy centrifuging everything off from his place of conditioning, that he can’t identify the strong and weak points he has to capture from the real threats.
This morning I discovered that the REPUBLICANS in the South Carolina General Assembly were seeking to appoint James Smith, a Democrat and a friend of Biden, as circuit judge. You read that right, Republicans. At one time in South Carolina Republican meant prolife. No more. Mr. Trump made the Dobbs decision, which reversed Roe v. Wade, possible and for that reason I will vote for him in the SC primary and in the general election.