Earlier today, the nine justices on the Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health Organization.
Dobbs v. Jackson could be the case to dismantle Roe v. Wade and allow state legislatures to protect preborn children. During the arguments several justices signaled they were willing to do just that.
Dobbs concerns a Mississippi law that prohibits abortion at 15-weeks’ gestation. This Pro-Life law undeniably contradicts Supreme Court precedent in Roe and Planned Parenthood v. Casey, which affirmed Roe’s finding of a constitutional right to an abortion but modified how courts must review Pro-Life laws.
The current mode of evaluation is an undue burden test tethered to a viability line: Pro-Life laws that impose an undue burden on a mother before a child can survive outside of the womb are considered constitutionally invalid. Precisely what an undue burden is and the arbitrariness of viability are disputed.
The issue before the court falls along these lines: “whether all pre-viability prohibitions on elective abortions are unconstitutional.” However, Mississippi took their argument further, advocating for a wholesale reversal of Roe.
In response, the abortion industry defended the substance of Roe but also emphasized the need to respect the precedent of the court’s prior decisions. These concepts and questions—undue burden, viability, precedent, and the soundness of Roe as a constitutional matter—were the focus of oral argument this morning.
The court’s most liberal justices spent their time suggesting Roe is too entrenched, and the abortion issue too political, to reverse the decision.
Justice Sonia Sotomayor conceded the Constitution does not expressly mention many of the court’s protected rights but nonetheless concluded the court is the final arbiter on these matters. This assertion is, unsurprisingly, an implicit biased endorsement of judicial supremacy. She also strangely implied that the belief that Life begins at fertilization is overtly a religious viewpoint—an implication that is, of course, ridiculous.
Justice Stephen Breyer warned against disturbing a precedent with profound political entanglements, meaning he prefers not a legal but a political decision in Dobbs.
Justice Elena Kagan, for her part, spent no time defending Roe on the merits. Instead, she concentrated her questions on the importance of respecting precedents—a theme throughout the nearly two-hour argument.
Notably, justices and the pro-abortion advocates had much difficulty defending Roe and Casey as decisions rooted in the Constitution.
Though that theme was amusing, the most insightful questions came from the Republican-appointed justices, who will determine the outcome of Dobbs.
Chief Justice John Roberts directed his criticism at the viability line established in Roe and underscored in Casey. He believes viability as a cutoff is unprincipled and not central to any potential constitutional right to abortion.
Chief Justice Roberts also highlighted that America is an outlier on abortion. We are more like North Korea and China than the rest of the Western world. Of course, North Korea and China are unquestionably some of the greatest human-rights violators of our time.
Nevertheless, the chief justice kept searching for another potential line the court could draw, resulting in a decision that would save Mississippi’s 15-week ban without reversing Roe.
Justice Neil Gorsuch asked both the Pro-Life and pro-abortion advocates to furnish a new cutoff point. None did so, which prompted Justice Gorsuch and Justice Samuel Alito to stress that no such line exists and that Dobbs is an all-or-nothing case—Roe must be struck to support Mississippi’s law.
Because the liberal justices belabored the importance of respecting precedent, Justice Alito and Justice Brett Kavanaugh articulated why Roe may not merit such respect.
Justice Kavanaugh explained that many of the court’s greatest and most monumental decisions were reversals of prior cases, including Brown v. Board of Education, a ruling prohibiting state segregation.
Justice Alito echoed this fact, pointing out the vast systems of discrimination much of the South built before Brown. That some in society have grown to rely on abortion is no excuse for upholding the unjust precedent of Roe.
Justice Amy Coney Barrett’s questions appeared to reveal she doesn’t think reliance on Roe and Casey is a strong argument either way. The presence of adoption and the ubiquity of Safe Haven laws mean pregnant mothers have options beyond abortion and parenthood.
Perhaps the most illuminating line of questioning came from Justice Kavanaugh, who many believe is the swing justice on the court. Abortion appears nowhere in the Constitution’s text, history, or tradition. So wouldn’t the court’s most neutral action be to let the legislatures decide? A neutral ruling, Justice Kavanaugh seemed to imply, is to reverse Roe and take abortion policy out of the courts.
Indeed, abortion policy had no business being in the courts in the first place. Roe was wrong in 1973, Casey was wrong in 1992, and both remain wrong today.
The Supreme Court should reject Chief Justice Roberts’ middle-ground proposal and reverse Roe v. Wade entirely, letting the states be the arbiters of abortion policy.
Next June, Roe may finally fall. Today, the justices signaled that possibility is more likely than many previously thought.