Five takeaways from oral arguments in Dobbs v. Jackson Women’s Health Organization

By Dave Andrusko

After over 90 minutes of vigorous questioning, the Supreme Court will now wrestle with the fate of Mississippi’s Gestational Age Act which protects unborn children after the 15th week.

“The justices will cast tentative votes at a private conference in the coming days,” writes the New York Times’ Adam Liptak. “The senior justice in the majority will then assign the majority opinion to a colleague or, just as likely, keep it. Draft opinions, almost certainly including concurrences and dissents, will be prepared and exchanged.”

Here are five takeaways from this morning sometimes heated oral arguments.

#1. If false patriotism is the last refuge of scoundrels, feigning that they will not submit to outside political pressure is a sure sign of the weakness of the pro-abortion case. “Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor stated. “I don’t see how it is possible.”

Justice Breyer backed her up. “It is particularly important to show that what we do in overturning a case is grounded in principle and not social pressure” he said.

Justice Elena Kagan added said a major goal of stare decisis is “to prevent people from thinking that this court is a political institution that will go back and forth” depending on a change in the court’s membership or who “yells the loudest.”

Someone (I missed who) asked does that mean the more unpopular a decision, the more the Court should cling to it?

#2. In dominating the first 15 minutes of questioning, Justice Sonia Sotomayor demonstrated she is as passionately pro-abortion as she is unfamiliar with the relevant fetology, history, and the fact that “when life begins” has been answered by science. For example, she insisted that those who argue the unborn child can feel pain at 20 weeks hold a “minority, a gross minority” position. In fact those who deny the unborn’s capacity to experience pain are relying on studies that go back more than decade. They are the ones who do not rely on “the science.” And in concluding that life begins at conception is “a religious view” Justice Sotomayor added bigotry to her mix of error.

#3. Since the question before the Court was “Whether all pre-viability prohibitions on elective abortions are unconstitutional,” most of the back and forth tracked what “viability” means and whether that standard works—or ever has worked in the nearly 30 years since the court handed down Planned Parenthood v. Casey.

Justices Sotomayor, Kagan, and Breyer said yes. Other justices—along with Mississippi Attorney General Scott Stewart—question its viability. “What I would say is this. The fundamental problem with viability [is] that it’s not something that rests on science,” Stewart said. “Viability is not tethered to anything.”  

According to Liptak, Chief Justice Roberts’ “repeatedly questioned whether the viability line was crucial, saying that Justice Harry A. Blackmun, the author of the majority opinion in Roe, had called the line arbitrary in his private papers.”

#4. Has the Court overturned precedent (stare decisis)? Of course. Justice Kavanaugh offered a long list of cases. Julie Rickleman, counsel for the Jackson Women’s Health Organization, said abortion was different. In a sense, Stewart agreed: abortion is different. It is the purposeful destruction of human life.

#5. Justice Alito asked Rickelman, “What’s your best case?” [“for the right to end a pregnancy, your Honor”? Rickelman asked].  She responded,“Allowing a state to take control of a woman’s body and force her to undergo the physical demands, risk, and life-altering consequences of pregnancy is a fundamental deprivation of her liberty.”

Stewart’s concluding remarks answered this, and much more.

I think Justice Kavanaugh, you had it exactly right when you used the term scrupulously neutral. I think that’s a very good description of what we’re asking for here. I think it’s the problem and the value that has evaded the Court and will continue to evade this Court under Roe and Casey, but that is exact — exactly right. This is a hard issue. It involves — and — and I would emphasize, Your Honor, that, as you said, there are interests here on — on both sides. There are interests for everyone involved. This is unique for the woman. It’s unique for the unborn child too whose life is at stake in all of these decisions. It’s unique for us as a society in how we decide if the states get to — get — get to legislate on this issue, how to decide and how to weigh these tremendously momentous issues.

In closing, I would say that in its dissent in Plessy versus Ferguson, Justice Harlan emphasized that there is no caste system here. The humblest in our country is the pure, the most powerful. Our Constitution neither knows nor tolerates distinctions on the basis of race. It took 58 years for this Court to recognize the truth of those realities in a decision, and that was the greatest decision that this Court ever reached.

We’re running on 50 years of Roe. It is an egregiously wrong decision that has inflicted tremendous damage on our country and will continue to do so and take enumerable human lives unless and until this Court overrules it. We ask the Court to do so in this case and uphold the state’s law. Thank you, Your Honor.