Earlier today, the United States Supreme Court heard oral arguments in Dobbs v. Jackson Women's Health Organization, which has the potential to radically upend the current landscape of abortion jurisprudence. At issue in the case is whether a Mississippi law banning most abortions past 15 weeks of pregnancy is constitutional. This case is different from others that have come before the Court because it directly asks the justices to overturn Roe v. Wade and Planned Parenthood v. Casey.
Roe and Casey shackle states to a view of facts that is decades out of date. It’s time to #EmpowerWomenPromoteLife. https://t.co/AmWx64huqk
— Lynn Fitch (@LynnFitchAG) December 1, 2021
State Solicitor General Scott Stewart argued on behalf of the state of Mississippi, the Center for Reproductive Rights' Julie Rikelman argued on behalf of Jackson Women's Health, and U.S. Solicitor General Elizabeth Prelogar argued on behalf of the Biden Administration.
Some highlights from the oral arguments:
Justice Thomas, who has openly called for overturning Roe and Casey, focused on asking the advocates how they would frame the issue in the case.
Clarence Thomas asks the first question. He notes that the court's abortion cases have generally focused on "privacy and autonomy" rather than abortion specifically. "Does it make a difference that we focus on privacy and autonomy, or more specifically on abortion?"
— SCOTUSblog (@SCOTUSblog) December 1, 2021
I find Justice Thomas's interest in defining the nature of the right to abortion very interesting. You can tell he's getting to the philosophical bedrock of the issue.
— Andrew T. Walker (@andrewtwalk) December 1, 2021
Questioning by Chief Justice Roberts signaled that there might be a way to uphold the Mississippi law without "formally" overturning Roe and Casey.
This is a very significant line of questioning from Roberts that suggests he is at least mulling the possibility of a ruling that would not formally overturn Roe & Casey but would discard the viability line -- opening the door to prohibitions on abortion earlier in pregnancy.
— SCOTUSblog (@SCOTUSblog) December 1, 2021
Justice Kavanaugh challenged counsel for Jackson Women's Health on her assertion that the Court won't overturn bad precedent.
Kavanaugh lists numerous landmark cases from the court's history, including Brown v. Board of Education, in which the court overturned prior precedents. If the court had simply followed stare decisis in those cases, Kavanaugh says, "the country would be a much different place."
— SCOTUSblog (@SCOTUSblog) December 1, 2021
Rikelman's response to Kavanaugh: "The view that a precedent is wrong has never been enough to overrule that precedent." It requires a "special justification," and Mississippi, she says, hasn't come forward with any special justifications here.
— SCOTUSblog (@SCOTUSblog) December 1, 2021
It's hard to know what the final outcome of the case will be. But Democrat lawmakers are doing what they can to try and intimidate the Court into making the decision they want. As Professor Jonathan Turley points out, they have a history of doing so:
Threatening the Supreme Court has become something of a required public exhibition of faith for Democrats, a demonstration that abstract notions like judicial independence will not distract from achieving political results. . .
Democrats routinely denounce conservatives as activists and threaten to change the Court if they continue to rule conservatively. Notably, while pointing to conservatives voting together as proof of ideological bias, these same leaders do not denounce the liberal justices who routinely vote as a block from the left of the Court. They are not ideologues because they are ruling “correctly.”
Roe is being used by many as an excuse to engage in raw court packing and jurisdiction stripping.
However, I find the threats leveled against the Court by Democratic politicians to be inappropriate and dangerous.
— Lindsey Graham (@LindseyGrahamSC) December 1, 2021
Threats to expand the size of the Supreme Court based on a ruling you may not agree with undermines the Rule of Law.
(2/2)
At least one justice seems to be feeling the pressure.
He should focus on the Constitution itself, not public opinion, and the Court will be just fine. https://t.co/JotdLADg2d
— Senator John Cornyn (@JohnCornyn) December 1, 2021
To learn more about today's oral arguments and the future of abortion law in America, join RNLA this Friday at 2:00 p.m. ET for a webinar on "Originalism and Roe" featuring Americans United for Life's Katie Glenn and the Ethics & Public Policy Center's Ed Whelan.