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Pro-life legal experts say they’re encouraged by justices’ questions in Dobbs abortion case

December 4, 2021 Catholic News Agency 0
Anna Del Duca (right) and her daughter, Frances, traveled from Pittsburgh to attend a pro-life rally outside the U.S. Supreme Court on Dec. 1, 2021, in conjunction with oral arguments for the Dobbs v. Jackson Women’s Health Organization abortion case. / Katie Yoder/CNA

Washington, D.C. Newsroom, Dec 4, 2021 / 04:00 am (CNA).

Three legal experts are expressing optimism for a pro-life victory in the U.S. Supreme Court case Dobbs v. Jackson Women’s Health Organization, a case that directly challenges Roe v. Wade, the 1973 ruling that legalized abortion nationside.

“I am hopeful that the court will take the opportunity in Dobbs to correct the grievous error of Roe v. Wade, and get the court out of our nation’s abortion politics,” Carrie Severino, president of the Judicial Crisis Network, told CNA after the Supreme Court heard arguments on Dec. 1.

The case involves a Mississippi law restricting most abortions after 15 weeks and centers on the question of “Whether all pre-viability prohibitions on elective abortions are unconstitutional,” or whether states can ban abortion before a fetus can survive outside the womb. 

In Roe v. Wade, the court ruled that states could not ban abortion before viability, which the court determined to be 24 to 28 weeks into pregnancy. In 1992, the court largely upheld Roe in Planned Parenthood v. Casey. If Roe is overturned — one possible outcome of the Dobbs case — abortion law would be left up to each individual state. 

“Today the court did a great job articulating its constitutional role: not to pick winners and losers on divisive issues like abortion, but to remain ‘scrupulously neutral,’ as Justice Kavanaugh said,” Severino tweeted just hours after the arguments. “The way it works out will look different in different states, but the Court should let the people decide.”

Although the arguments were held in December, the Supreme Court generally releases decisions in high-profile cases, such as this one, at the end of its term in June. 

Keara Brown, originally from Columbus, Ohio, came with her Washington, D.C. team from pro-life group Live Action. They attended the pro-life rally outside the U.S. Supreme Court on Dec. 1, 2021. Katie Yoder/CNA
Keara Brown, originally from Columbus, Ohio, came with her Washington, D.C. team from pro-life group Live Action. They attended the pro-life rally outside the U.S. Supreme Court on Dec. 1, 2021. Katie Yoder/CNA

“I am very encouraged by oral argument and the prospect of a favorable decision this summer, but we should keep up our prayers for the justices,” legal scholar Erika Bachiochi told CNA.

Bachiochi serves as a fellow at the Ethics and Public Policy Center and a senior fellow at the Abigail Adams Institute in Cambridge, Massachusetts, where she founded and directs the Wollstonecraft Project.

She identified one part of the oral arguments that she found surprising.

“Although I suppose shouldn’t have been, I was surprised by Justice Sotomayer’s naked pro-abortion rhetoric, especially with regard to her question concerning the ‘religious’ source of a 15-week abortion ban,” she said. “Does she really not know the science of fetal development?” 

During the oral argument, Justice Sonia Sotomayor questioned Scott G. Stewart, the solicitor general of Mississippi.

“How is your interest anything but a religious view?” she asked. “The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions.”

She added, “So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it — because it assumes that a fetus’ life at — when? You’re not drawing — you’re — when do you suggest we begin that life? Putting it aside from religion.”

In anticipation of the oral argument, the Charlotte Lozier Institute, the research arm of the Susan B. Anthony List, documented information about 15-week-old unborn babies, who can, among other things, already exhibit whether they prefer sucking their right or left thumb.

Earlier this year, Bachiochi, together with law professors Teresa Collett and Helen Alvaré, filed an amicus brief representing 240 women scholars and professionals and various pro-life organizations in Dobbs v. Jackson Women’s Health Organization.

In a piece published by the National Catholic Register, Alvaré, a professor of law at the Antonin Scalia Law School, George Mason University, found the oral argument “promising for the pro-life cause.”

But, she added, “it would be impossible to cram into the few minutes of an oral argument all the reason, facts, principles, analyses — and hopes — of 50 years of pro-life argumentation,” she wrote. “There was no time to call out abortion advocates’ lies, more lies, and made-up statistics. No time to show that women have not depended upon abortion for their dignity and freedom, but that the opposite is true. No time to detail the miraculous, the beautiful humanity of the unborn.” 

“Based strictly upon the oral arguments, it is clear that Justices Sotomayor, Breyer and Kagan will vote to uphold abortion rights,” she said. “It is more difficult to pronounce where the remaining Justices might fall, but their comments were largely promising.”

[…]

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News Briefs

Dobbs Day: Here’s what it was like at the rallies outside the Supreme Court

December 2, 2021 Catholic News Agency 0
Thousands of pro-life advocates gathered outside the U.S. Supreme Court in Washington, D.C., on Dec. 1, 2021, in conjunction with oral arguments in the Dobbs v. Jackson Women’s Health Organization abortion case. / Katie Yoder/CNA

Washington D.C., Dec 2, 2021 / 08:04 am (CNA).

Anna Del Duca and daughter, Frances, woke up at 5 a.m. Wednesday morning to brave the 30-degree weather outside the U.S. Supreme Court in Washington, D.C. They arrived hours before oral arguments began in the highly-anticipated abortion case, Dobbs v. Jackson Women’s Health Organization.

The case, which involves a Mississippi law restricting most abortions after 15 weeks, challenges two landmark decisions: Roe v. Wade, the 1973 ruling that legalized abortion nationwide, and Planned Parenthood v. Casey, which upheld Roe in 1992. 

“We’re looking forward to the end of Roe versus Wade in our country,” Anna, who drove from Pittsburgh Tuesday night, told CNA. In her hands, she held a sign reading, “I regret my abortion.”

Anna Del Duca (right) and her daughter, Frances, traveled from Pittsburgh to attend a pro-life rally outside the U.S. Supreme Court on Dec. 1, 2021, in conjunction with oral arguments for the Dobbs v. Jackson Women's Health Organization abortion case. Katie Yoder/CNA
Anna Del Duca (right) and her daughter, Frances, traveled from Pittsburgh to attend a pro-life rally outside the U.S. Supreme Court on Dec. 1, 2021, in conjunction with oral arguments for the Dobbs v. Jackson Women’s Health Organization abortion case. Katie Yoder/CNA

“I would like to use my testimony to be a blessing to others,” she said, so that “others will choose life or those who have regretted abortion or had an abortion would turn to Jesus.”

Anna remembered having an abortion when she was just 19. Today, she and her daughter run a group called Restorers of Streets to Dwell In Pittsburgh that offers help to women seeking healing after abortion. 

Anna and Frances were among thousands of Americans who rallied outside the Supreme Court before, during, and after the oral arguments. To accommodate them, law enforcement closed the street in front of the court. Capitol police also placed fencing in the space in front of the building in an attempt to physically separate rallies held by abortion supporters and pro-lifers.

At 21-weeks pregnant, pro-life speaker Alison Centofante emceed the pro-life rally, called, “Empower Women Promote Life.” The event featured a slew of pro-life women of diverse backgrounds and numerous politicians.

“It’s funny, there were so many diverse speakers today that the only unifying thread was that we want to protect preborn children,” Centofante told CNA. They included Democrats, Republicans, Christians, Catholics, agnostics, atheists, women who chose life, and women who regretted their abortions, she said.

She recognized women there, including Aimee Murphy, as people who are not the typical “cookie cutter pro-lifer.”

Aimee Murphy, 32, founder of pro-life group Rehumanize International, arrived at the Supreme Court around 6:30 a.m. She drove from Pittsburgh the night before. Her sign read, “Queer Latina feminist rape survivor against abortion.”“At Rehumanize International, we oppose all forms of aggressive violence,” she told CNA. “Even as a secular and non-partisan organization, we understand that abortion is the most urgent cause that we must stand against in our modern day and age because it takes on average over 800,000 lives a year.”

She also had a personal reason for attending. 

“When I was 16 years old, I was raped and my rapist then threatened to kill me if I didn’t have an abortion,” she revealed.

“It was when he threatened me that I felt finally a solidarity with unborn children and I understood then that, yeah, the science told me that a life begins at conception, but that I couldn’t be like my abusive ex and pass on the violence and oppression of abortion to another human being — that all that I would be doing in having an abortion would be telling my child, ‘You are an inconvenience to me and to my future, therefore I’m going to kill you,’ which is exactly the same thing that my rapist was telling me when he threatened to kill me.”

On the other side of the police fence, the Center for Reproductive Rights and the National Abortion Access Coalition and NARAL Pro-Choice America participated in another rally. Yellow balloons printed with the words “BANS OFF OUR BODIES” escaped into the sky. Several pro-choice demonstrators declined to speak with CNA.

Voices clashed in the air as people, the majority of whom were women, spoke into their respective microphones at both rallies. Abortion supporters stressed bodily autonomy, while pro-lifers recognized the humanity of the unborn child. Chants arose from both sides at different points, from “Whose choice? My choice!” to “Hey hey, ho ho, Roe v. Wade has got to go!”

At 10 a.m., the pro-life crowd sudddenly went silent as the oral arguments began and the rally paused temporarily as live audio played through speakers.

Hundreds of students from Liberty University in Lynchburg, Virginia, traveled to Washington, D.C. for a pro-life rally outside the U.S. Supreme Court on Dec. 1, 2021, in conjunction with oral arguments in the Dobbs v. Jackson Women's Health Organization abortion case. Katie Yoder/CNA
Hundreds of students from Liberty University in Lynchburg, Virginia, traveled to Washington, D.C. for a pro-life rally outside the U.S. Supreme Court on Dec. 1, 2021, in conjunction with oral arguments in the Dobbs v. Jackson Women’s Health Organization abortion case. Katie Yoder/CNA

During the oral arguments, students from Liberty University knelt in prayer. One student estimated that more than a thousand students from the school made the more than 3-hour trip from Lynchburg, Virginia.

“Talking about our faith is one thing, but actually acting upon it is another,” he said. “We have to be the hands and feet of Jesus Christ. So to me this is part of doing that.”

Sister Mary Karen, who has been with the Sisters of Life for 21 years, also stressed the importance of prayer. She drove from New York earlier that morning because, she said, she felt drawn to attend. She came, she said, to pray for the country and promote the dignity of a human person. 

“Our culture is post-abortive,” she explained. “So many people have suffered and the loss of human life is so detrimental, just not knowing that we have value and are precious and sacred.”

Theresa Bonopartis, of Harrison, New York, was among the pro-life demonstrators outside the U.S. Supreme Court on Dec. 1, 2021. She runs a nonprofit group called Entering Canaan that ministers to women and others wounded by abortion. Katie Yoder/CNA
Theresa Bonopartis, of Harrison, New York, was among the pro-life demonstrators outside the U.S. Supreme Court on Dec. 1, 2021. She runs a nonprofit group called Entering Canaan that ministers to women and others wounded by abortion. Katie Yoder/CNA

She stood next to Theresa Bonopartis, who traveled from Harrison, New York, and ministers to women and others wounded by abortion.

“I’ve been fighting abortion for 30 years at least,” she told CNA. 

Her ministry, called Entering Canaan, began with the Sisters of Life and is observing its 25th anniversary this year. It provides retreats for women, men, and even siblings of aborted babies.

Abortion is personal for Bonopartis, who said she had a coerced abortion when she was just 17. 

“I was kicked out of the house by my father and then coerced into getting an abortion,” she said. “Pretty much cut me off from everything, and that’s something people don’t really talk about … they make it try to seem like it’s a woman’s right, it’s a free choice. It’s all this other stuff, but many women are coerced in one way or another.”

She guessed that she was 14 or 15 weeks pregnant at the time.

“I saw my son. I had a saline abortion, so I saw him, which I always considered a blessing because it never allowed me to deny what abortion was,” she said. Afterward, she said she struggled with self-esteem issues, hating herself, guilt, shame, and more. Then, she found healing.

“I know what that pain is like, I know what that experience is like, and you know that you can get past it,” she said. “You just want to be able to give that message to other people, that they’re able to heal.”

Residents of Mississippi, where the Dobbs v. Jackson case originated, also attended. 

Marion, who declined to provide her last name, drove from Mississippi to stand outside the Supreme Court. She said she was in her early 20s when Roe v. Wade was decided in 1973. 

“At the time, of course, I could care less,” she said. Since then, she had a change of heart. 

“We were the generation that allowed it,” she said, “and so we are the generation who will help close that door and reverse it.”

Marion, who declined to provide her last name, was among those who attended a pro-life rally outside the U.S. Supreme Court on Dec. 1, 2021, from Mississippi, where the Dobbs v. Jackson Women's Health Organization abortion case originated. Katie Yoder/CNA
Marion, who declined to provide her last name, was among those who attended a pro-life rally outside the U.S. Supreme Court on Dec. 1, 2021, from Mississippi, where the Dobbs v. Jackson Women’s Health Organization abortion case originated. Katie Yoder/CNA

The crowd at the pro-life rally included all ages, from those who had witnessed Roe to bundled-up babies, children running around, and college students holding up homemade signs. 

One group of young friends traveled across the country to stand outside the Supreme Court. They cited their faith and family as reasons for attending.

Mathilde Steenepoorte, 19, from Green Bay, Wisconsin, identified herself as “very pro-life” in large part because of her younger brother with Down syndrome. She said she was saddened by the abortion rates of unborn babies dianosed with Down syndrome.

Juanito Estevez, from Freeport, a village on Long Island, New York, at a pro-life rally outside the U.S. Supreme Court on Dec. 1, 2021. Katie Yoder/CNA
Juanito Estevez, from Freeport, a village on Long Island, New York, at a pro-life rally outside the U.S. Supreme Court on Dec. 1, 2021. Katie Yoder/CNA

Juanito Estevez, from Freeport, a village on Long Island, New York, arrived Tuesday. He woke up at 6 a.m. to arrive at the Supreme Court with a crucifix in hand.

“I believe that God is the giver of life and we don’t have the right [to decide] whether a baby should live or die,” he said.

He also said that he believed women have been lied to about abortion. 

“We say it’s their right, and there’s a choice,” he said. When girls tell him “I have the right,” his response, he said, is to ask back, “You have the right for what?” 

Mallory Finch, from Charlotte, North Carolina, was among the pro-life demonstrators outside the U.S. Supreme Court on Dec. 1, 2021.
Mallory Finch, from Charlotte, North Carolina, was among the pro-life demonstrators outside the U.S. Supreme Court on Dec. 1, 2021.

Mallory Finch, from Charlotte, North Carolina, also woke up early but emphasized “it was worth it.” A pro-life podcast host, she called abortion a “human-rights issue.”

“I hope that it overturns Roe,” she said of the case, “but that doesn’t mean that our job as pro-lifers is done. It makes this, really, just the beginning.” 

[…]

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One ‘core’ issue may decide the Dobbs abortion case. Here’s why

December 1, 2021 Catholic News Agency 0
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.

[…]