Many commentators in the conservative legal sphere agree—there is no middle ground when it comes to the decision the U.S. Supreme Court will make in Dobbs v. Jackson Women's Health Organization. Carrie Severino writes for Fox News:
The current court would commit grave error in Dobbs if it replicated Casey’s gamesmanship with yet another baseless exercise in line-drawing. In other words, the only principled outcome here is for the court to overrule those two precedents, which are as unprincipled as any cases decided within living memory.
Interestingly, the attorneys arguing against Mississippi’s law effectively reinforced this notion by pushing back on the idea that there could be any other acceptable line besides viability. In other words, there are no grounds for a half-baked decision.
For that matter, what the court’s three liberal justices – Stephen Breyer, Elena Kagan, and Sonia Sotomayor – had to say was remarkably devoid of legal analysis and almost entirely devoted to arguments of policy or the political effects of overturning precedent. Of course, the same can be said for Roe and Casey themselves.
Sotomayor’s histrionics were particularly rich. She asked, "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?" As if she and her liberal colleagues have not toppled precedents they want to overturn as readily as a blowtorch goes through tissue paper.
As Margot Cleveland points out, the liberal justices' antics threaten the legitimacy of the Court.
Casey’s reliance on the “Court’s legitimacy,” to affirm “Roe’s essential holding,” now also cuts the other way because what the Supreme Court in Casey failed to recognize is that they had destroyed their own credibility by announcing to the country that they were more concerned with appearing apolitical and unaffected by public opinion than the constitutional soundness of their opinion. Yesterday’s obsession by Justices Breyer, Sotomayor, and Kagan with stare decisis as a means of showing the public it is not affected by whichever side yells the loudest only confirms that public opinion matters to the justices.
Nor would affirming Casey solve the court’s legitimacy problem, as even Justice Breyer seemed to acknowledge. No matter how the court rules, one side will see the justices as political creatures. “Where people are really opposed on both sides and they really fight each other, they’re going to be ready to say, no, you’re just political, you’re just politicians,” Justice Breyer pondered, adding “That’s what kills us as an American institution.”
No, what killed the Supreme Court as an American institution was its refusal to interpret the Constitution as written and then, rather than fix the mistake, claim that “its reasoned judgment” and a fear of public disregard prevent it from doing so.
Some further comments on the questions asked by the justices:
Ed Whelan notes that the Chief Justice's assertions about viability were "puzzling":
At oral argument in Dobbs, the Chief Justice seemed to posit that viability wasn’t actually “an issue” in Roe (transcript at 18:23) and that the Court’s declaration on viability in Roe might be nothing more than dicta:
In fact, if I remember correctly, and I — it’s an unfortunate source, but it’s there — in his papers, Justice Blackmun said that the viability line was — actually was dicta. And, presumably, he had some insight on the question. [19:15-20]
I find the Chief’s suggestion very puzzling. For starters, it would appear that he does not in fact “remember correctly” what Justice Blackmun’s papers say on the matter. Blackmun indicated that the viability line was “arbitrary,” not that it was dicta:
You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.
(Blackmun did state that his draft opinion “contains dictum,” but I see no reason to read that as a reference to the viability line. If the draft is anything like the final opinion, there are lots of other passages that would merit the dictum label.)
Alexandra DeSanctis explains how counsel for Jackson Women's Health (and the Left generally) missed the point on Justice Barrett's line of questioning on safe-haven laws:
Barrett raised a question that she also had put to Center for Reproductive Rights attorney Julie Rikelman, about safe-haven laws, which shield women from prosecution if they surrender an unwanted child to a safe haven.
Barrett’s question was designed not to advocate adoption as an abortion alternative but rather to force Prelogar to get to the heart of what principle makes the right to abortion so essential. She was asking, in other words, whether the supposed burden of parenthood is diminished by safe-haven laws. If the aim of abortion supporters is to enable women to choose not to be a parent, why are safe-haven laws not good enough? Why must the government also sanction abortion?
Prelogar’s response was, in effect, that both continuing pregnancy and giving up a child for adoption still put too much of a burden on women, and thus abortion needs to remain an option in order for women to have a real choice and real freedom. The right to abortion, in other words, is essential not so that women don’t have to parent or can end pregnancy (which can be done without aborting the child) but so that they can affirmatively do away with an unwanted child.
The full transcript and audio of Wednesday's oral arguments can be accessed here.
Join RNLA for a webinar featuring Americans United for Life's Katie Glenn and the Ethics & Public Policy Center's Ed Whelan this Friday at 2:00 p.m. ET to learn more about the Dobbs oral arguments and the future of abortion law in America.