A follow up to oral arguments in Dobbs reveals hidden nuggets

By Dave Andrusko

National Right to Life is providing an ongoing series of stories breaking down what the justices said yesterday in oral arguments in Dobbs v. Jackson Women’s Health Organization. The “Gestational Age Act” which protects unborn children after 15 weeks.

There are many possibilities from the sometimes heated debate to examine. Here are two.

Naturally, given how universally Roe (and to a somewhat lesser extent Planned Parenthood v. Casey) have been critiqued, pro-abortion justices planted their flag on precedent on stare decisis—“to stand by things already decided”–rather than taking up the near-impossible task of defending Roe/Casey.

In his opening question, Justice Thomas invited Mississippi Solicitor General Stewart to explain how and why abortion is different and perhaps ripe to be reversed:

Justice Thomas: You say that this is the only constitutional right that involves the taking of a life. What difference does that make in your analysis? 

MR. STEWART: Sure, Your Honor. I think makes a number of differences. …One is it really does mark out the unbelievably profound ramifications of this area, which, in many other areas, assisted suicide, a whole host of important areas that are important to dignity, autonomy, freedom, and important to matters of conscience, as one of the unique areas where this Court has taken that important issue to the people. It’s something that implicates life and it just, I think, marks off, Justice Thomas, how problematic and unusual and how much of a break the Court’s abortion jurisprudence is from those other cases.

In other words, holding to stare decisis in the case of abortion is different than adhering to any other controversy issue: a life is taken.

Another issue was whether a decision could (or should) ever be reversed because it was wrong from the beginning. Justice Alito tried repeated to get an answer from Solicitor General Elizabeth Prelogar whether if Plessy v. Fergusson—the 1896 decision that upheld “separate but equal”— “had come before the Court in 1897, should it have been overruled or not?”

 She evaded giving a direct answer. Justice Alito tried again.

I still don’t have your answer clearly. 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? Yes or no? Can you give me a yes or no answer on that?

She finally said “I think it should have been overruled,” but buried her response in qualifiers.

Prof. Jonathan Turley summarized the exchange this way:

On Wednesday, Kavanaugh and other justices balked at claims that Roe is somehow untouchable due to the passage of 50 years. The 1896 ruling of Plessy v. Ferguson was overturned in Brown v. Board of Education of Topeka, roughly 58 years after it was written; the court ruled that its Plessy decision was egregiously wrong — one in a long list of reversals celebrated today. …

There is a major difference, though, between the oral arguments in Brown and those in Dobbs. In Brown, the court had extensive discussion of the constitutional foundation for the “separate but equal” doctrine; in Dobbs, there was comparably little substantive defense of the analysis in Roe or its successor case, Planned Parenthood v. Casey. Indeed, the thrust of much of the pro-choice argument was that, even if Roe was incorrectly decided, it takes more than being wrong to overturn such an “established” precedent.

One other line of inquiry was broached by Justice Barrett: the question of the “burden” of caring for an “unwanted child.” She asked Julie Rikelman, of the Center for Reproductive Rights,

I have a question about the safe haven laws. So Petitioner points out that in all 50 states, you can terminate parental rights by relinquishing a child after abortion, and I think the shortest period might have been 48 hours if I’m remembering the data correctly. So it seems to me, seen in that light, both Roe and Casey emphasize the burdens of parenting, and insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy. Why don’t the safe haven laws take care of that problem?

Rikelman was not giving an inch:

[W]e don’t just focus on the burdens of parenting, and neither did Roe and Casey. Instead, pregnancy itself is unique. It imposes unique physical demands and risks on women and, in fact, has impact on all of their lives, on their ability to care for other children, other family members, on their ability to work.

In responding to Justice Barrett, Prof. Sherry Colb went further in refusing to distinguish between the burdens of parenting and the burdens of pregnancy:

When one has carried a pregnancy to term and given birth, one will generally be overcome with a sense of attachment to the baby…. Once we give birth, having to hand the baby over to someone else is likely to be gut-wrenching and devastating.

As National Review’s Ed Whelan observed

Such a decision surely could be “gut-wrenching and devastating,” though I would think that a woman with a well-formed conscience would find it even more gut-wrenching and devastating to kill her child (and that a state’s laws could properly treat the killing as worse than the emotional turmoil from the safe-haven decision). In any event, insofar as a mother decides “to hand the baby over to someone else,” she is relieving herself of any further burdens of parenting. So Colb’s point is relevant as a response to Barrett only when those powerful emotions prevent a mother from availing herself of the safe-haven option.

 If you wish to read the entire fascinating transcript of Wednesday oral argument, go to www.supremecourt.gov/oral_arguments/argument_transcripts.